UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


Zoline 
on 

Federal  Appellate  Jurisdiction  and 

Procedure 

With  Forms 


By 
Elijah  N.  Zoline 

Of  the 
New  York  and  Chicago  Bar 

Member  of  the  Bar  of  the  Supreme  Court  of  the  United  States 


Revised  by 

Stephen  A.  Day 

Of  the  Chicago  and  Cleveland  Bar 
Member  of  the  Bar  of  the  Supreme  Court  of  the  United  States 


Clark  Boardman  Co. 

(Limited) 

New  York 

J9J7 


T 
I?  17 


Copyright  by 

ELIJAH  N.  ZOLINE 

1917 


"Cbe  "fcnfcfccrboci-er  |>re8B,  "ttew  Korfe 


u. 


MY  FRIEND 

HONORABLE  JAMES  HAMILTON  LEWIS 

UNITED   STATES  SENATOR  OF  THE   STATE   OF   ILLINOIS 

WITH  WHOM,  WHILE  HE  WAS  CORPORATION  COUNSEL  FOR  THE  CITY  OF  CHICAGO  AND 

COUNSEL  FOR  PRIVATE  LITIGANTS,    I  ENGAGED  AS  HIS    CO-LABORER, 

WHICH   MADE  IT  POSSIBLE  FOR  ME  TO  EXPOUND  THE 

LAW  TO  WHICH  THIS  BOOK  IS  ADDRESSED 


PREFACE 

Of  the  different  branches  of  the  law  comprising  the  jurisprudence 
of  our  country,  the  subject  of  federal  appellate  jurisdiction  and 
procedure  is  apparently  least  understood.  This  is  evidenced  by  the 
large  number  of  appeals  and  writs  of  error  dismissed  for  want  of 
jurisdiction  or  for  failure  to  comply  with  the  law  governing  the  pro- 
cedure in  certain  cases. 

It  must  be  conceded  that  questions  of  jurisdiction,  notably  the 
jurisdiction  of  the  Supreme  Court  of  the  United  States,  are  not  always 
free  from  doubt  and  can  be  definitely  answered  only  by  the  Court 
itself;  but  in  the  majority  of  cases  the  law  is  clear;  the  jurisdiction 
and  procedure  of  the  different  reviewing  courts  are  well  defined. 
What  then  is  the  cause  of  so  many  dismissals  ?  To  this  question  many 
answers  may  be  given,  but  the  author  begs  to  suggest  two  reasons: 

First — The  subject  of  appellate  jurisdiction  and  procedure  in  the 
Courts  of  the  United  States  is,  as  a  general  rule,  not  taught  in  the 
law  schools.  In  some  schools  instruction  is  given  on  federal  jurisdic- 
tion generally,  but  nowhere,  as  far  as  the  author  is  advised,  is  the 
subject  taught  as  a  separate  and  distinct  branch  of  the  law. 

Second — The  law  relating  to  federal  appellate  jurisdiction  and 
procedure  has  undergone  many  changes,  namely,  by  the  passage  of  the 
Federal  Judicial  Code  in  1910;  by  the  promulgation  of  the  new  Federal 
Equity  rules  in  1912;  by  various  amendments  to  the  Judicial  Code  in 
1913  and  1915,  and  again  as  recently  as  September  1916.  In  addition 
are  the  many  rules  of  court  and  the  decisions  construing  both  the 
statutes  and  the  rules.  No  little  uncertainty  and  confusion  have 
resulted. 

The  foregoing  statement  explains  the  need  of  a  book  brought  down 
to  date,  treating  the  subject  of  federal  appellate  jurisdiction  and 
procedure  as  a  separate  and  distinct  branch  of  the  law. 

(iii) 


PREFACE 

This  book  is  not  a  digest,  and  no  claim  is  made  that  it  covers  all 
the  decisions  upon  the  subjects  treated.  However,  an  inspection  of 
the  matter  discussed  and  the  authorities  cited  in  support  of  the  same 
will  show  that  they  are  sufficient  for  all  practical  purposes.  All 
obsolete  statutes,  rules,  and  decisions  have  been  disregarded.  Only, 
the  latest  decisions,  statutes,  and  rules  are  given,  except  where  no 
change  in  the  law  has  taken  place. 

The  author  has  endeavored  to  arrange  each  topic  in  logical  and 
convenient  order,  and  the  practitioner  will  find  the  various  statutes, 
rules,  and  decisions,  ordinarily  scattered  among  many  books,  grouped 
together  in  this  work.  Hope  is  entertained  that  as  a  result  of  this 
plan  both  time  and  labor  will  be  saved,  and  the  possibility  of  error 
arising  from  a  reliance  upon  an  obsolete  law  will  be  reduced  to  a 
minimum. 

This  book  was  written  by  an  active  and  experienced  federal  practi- 
tioner for  practitioners. 

The  trouble  with  many  cases  brought  for  review  in  the  Supreme 
Court  of  the  United  States  is  that  the  federal  question  is  an  after- 
thought and  is,  so  to  speak,  injected  in  the  record  at  the  eleventh  hour. 
In  this  book  the  author  has  attempted  in  many  ways  to  demonstrate 
how  and  when  to  raise  a  federal  question;  what  constitutes  a  federal 
question;  within  what  time  and  in  what  court  a  federal  judgment  or 
decree  or  a  decision  of  the  highest  court  of  the  state  may  be  reviewed. 
Whether  a  substantial  federal  question  in  fact  exists  often  depends 
upon  the  application  of  principles  of  substantive  law — both  con- 
stitutional and  statutory,  and,  for  this  reason,  the  author  here  and 
there  deemed  it  necessary  to  enlarge  upon  the  substantive  law  in  so 
far  as  it  is  related  to  the  subject  of  federal  jurisdiction.  This  feature 
of  the  work,  he  trusts,  will  be  helpful  to  the  practitioner. 

The  author  is  under  great  obligation  to  the  Hon.  Charles  Merrill 
Hough,  U.  S.  Circuit  Judge  in  and  for  the  Second  Circuit,  and  to  the 
Hon.  John  W.  Davis,  Solicitor  General  of  the  United  States,  both  of 
whom  have  read  the  manuscript  and  made  valuable  suggestions  which 
are  incorporated  in  this  book. 

The  author  is  also  under  obligation  to  the  Hon.  James  D.  Maher, 
Clerk  of  the  U.S.  Supreme  Court,  and  the  Hon.  William  R.  Stansbury, 
his  assistant;  to  the  Hon.  William  Parkin,  Clerk  of  the  U.  S.  Circuit 

(iv) 


PREFACE 

Court  of  Appeals  for  the  Second  Circuit,  and  the  Hon.  Dimon  E. 
Roberts,  his  assistant;  to  the  Hon.  Edward  M.  Holloway,  Clerk  of  the 
U.  S.  Circuit  Court  of  Appeals  for  the  Seventh  Circuit,  for  the  many 
courtesies  extended  to  him  by  them.  Many  of  their  suggestions  made 
it  possible  to  give  to  the  practitioner  authentic  information  relating 
to  the  procedure  in  their  respective  courts. 

Elijah  N.  Zoline. 


New  York,  N.  Y. 
October  15,  1917 


(v) 


INTRODUCTORY  REMARKS  BY  MR.    DAY 

In  the  course  of  time  and  the  further  development  of  the  United 
States,  the  Federal  Jurisdiction  has  been  gradually  extended  and  this 
tendency  will  be  more  in  evidence  in  the  future. 

The  present  need  is  for  a  reliable  treatise  on  the  practical  side 
of  Federal  Appellate  Jurisdiction  and  Procedure,  abreast  of  the 
decisions  and  statutory  amendments  to  the  practice  acts. 

The  task  of  revision  has  been  one  of  pleasure,  because  the  work  of 
the  author  has  been  exceedingly  well  done  and  with  commendable 
accuracy. 

Stephen  A.  Day. 

Chicago,  Illinois, 

September  75,  1917. 


TABLE   OF   CONTENTS 


TABLE  OF  CONTENTS 

Part  I— Federal 

CHAPTER  I. 

Fundamentals  of  Appeal  and  Error — General  Observations. 


Sec.  Sec. 

1.  General  definition  of  appeal.  14. 

2.  General  definition  of  writ  of  error. 

3.  The  distinction  maintained.  15. 

4.  Constitutional  provision. 

5.  Supreme  Court  only  court  created       16. 

by  Constitution. 

6.  Power    of    Congress    over    inferior      17. 

courts. 

7.  Congress  fixes  limit  of  jurisdiction.  18. 

(a)  Establishment   and   abolition       19. 
of  courts. 

(b)  Congressional  action.  20. 

8.  The  New  Federal  Judicial  Code.  21. 

9.  Jurisdiction  the  fundamental  ques-      22. 

tion:  23. 

(a)  Of  the  Appellate  Court.  24. 

(b)  Of  the  Court  below. 

Appellate  jurisdiction — when    re-      25. 
tained. 

10.  Jurisdiction  defined.  26. 

11.  Essentials  of  appellate  jurisdiction.         27. 

12.  Scope    of    jurisdiction    generally —      28. 

nature  of  judgment. 

13.  Jurisdiction  not  affected  by  errone-      29. 

ous  ruling. 


Authority  to  consider  jurisdiction 
incident  to  general  power. 

Judgment  without  notice  absolutely 
void. 

Jurisdiction  over  subject-matter  con- 
ferred by  authority. 

Jurisdiction  over  person  obtained  by 
process — Service  by  fraud. 

Process  in  rem. 

Jurisdiction  over  subject-matter  can- 
not be  conferred  by  consent. 

Organic  power  of  the  court. 

Certain  facts  jurisdictional. 

Quasi  jurisdictional  facts. 

Decree  outside  of  issues,  invalid. 

Power  to  render  particular  judgment; 
nature  of  judgment. 

Excessive  penalty  annuls  judg- 
ment. 

Effect  of  want  of  jurisdiction. 

Error  does  not  avoid  jurisdiction. 

"Full  faith  and  credit"  will  not  be 
accorded  where  no  jurisdiction. 

General  remarks. 


CHAPTER  II 
Federal  Decisions — How  and  When  Reviewable 


Sec. 

1.  Constitutional  provisions. 

2.  Courts  of  law  and  equity  denned. 

3.  Transfer  of  causes. 


Sec 

4.  State  procedure  not  applicable. 

5.  Distinction     between    appeal    and 

error  entertained  in  Federal  Court. 


(vii) 


TABLE   OF  CONTENTS 


Sec.  Sec' 

6.  General  Rules  governing  review.  30. 

(a)  Review  by  appeal. 

(b)  By  writ  of  error.  31. 

7.  Mistake  in  choice  of   remedy   be- 

tween appeal  and  error  no  longer      32. 
fatal.     Act  of  Sept.  6,  iqi6. 

8.  When   advisable   to    use    both    re- 

medies. 

9.  Contempt  proceedings  reviewable  by      33. 

writ  of  error. 

10.  Interlocutory  contempt  orders  not      34. 

reviewable. 

11.  When     order     in     contempt     not      35. 

reviewable. 

12.  Punitive     order     in     contempt     a      36. 

criminal  judgment. 

13.  Contempt  a  specific  offense.  37. 

14.  When  order  is  punitive. 

15.  Criminal       cases — Judgments       re-      38. 

viewed  by  writ  of  error.  39. 

16.  Writ  of  error  to  review  judgment  in      40. 

mandamus  proceedings. 

17.  Judgments  under  Pure  Food  Law.  41. 

18.  Decisions   in    Interstate  Commerce 

Matters. 

19.  Order  setting  aside  judgment  after 

term. 

20.  Necessity  for  final  determination — 

Jurisdictional  prerequisite.  42. 

21.  Doubt  resolved  against  finality.  43. 

22.  What    are  final    judgments — Final 

judgment       or       decree       must      44. 
terminate  litigation. 

23.  Orders    at    foot  of  decree  may  be      45. 

final. 

24.  When  reference  to  master  does  not      46. 

affect  finality. 

25.  Decree  pro  confesso  final,   but  re-      47. 

view  limited.  48. 

26.  Judgments  and  decrees  held  final. 

27.  Orders    refusing    intervention    final      49. 

and    appealable. 

28.  Order  limiting  liability  in  admiralty.      50. 

29.  Habeas    corpus    orders    final    and 

appealable.  51. 

(viii) 


Appealable    orders    on    sales    and 

resale. 
Appeal    from    order    setting    aside 

sale. 
Judgment  or  decree  not  final  when 

motion  to  set  aside  pending. 

(a)  A  decree  in    alternative   not 

final. 
Decrees  and  orders  held  not  final — 

when. 
When    review   must   await    further 

proceedings. 
On  appeal  in  equity,  law  and  fact 

reviewed. 
Concurrent  findings  of  fact  will  not 

be  disturbed. 
Rule     not     applicable     where    no 

opinion  is  filed. 
Rule  similar  in  patent  matters. 
Review  of  master's  report. 
Master's    findings — How    far    con- 
clusive. 
Orders  of  the  Interstate  Commerce 

Commission  are  not  reviewable  in 

any    court    except    for    a    gross 

abuse    of    power    or    an    uncon- 
stitutional  invasion   of   property 

rights. 
Exception  to  the  above  rule. 
Moot    questions    not    reviewable — 

What  questions  are  moot. 
Questions  of  costs  not  reviewable,  if 

no  other  controversy. 
Extrinsic  evidence  to  prove  question 

moot. 
Stipulated   judgments   and    decrees 

not  appealable. 
Naturalization  cases. 
Decisions  Affecting  Attorneys — 

Reviewable  by  mandamus. 
Review  of  disbarment — Remedy  by 

mandamus  exclusive. 
Supervisory     jurisdiction     of     the 

Supreme  Court. 
Rights  of  attorneys. 


TABLE   OF  CONTENTS 


CHAPTER    III 

Who  may  Apply  for  Review  of  a  Judgment  or  Decree  Entered  in 

a  Federal  Court 


Sec. 

1.  All    parties    to    the    record,    their 

privies  and  personal  representa- 
tives may  ask  review. 

2.  Bankrupt  may  appeal  in  his  own 

name. 

3.  Party  in  contempt  not  deprived  of 

right  of  appeal. 

4.  Next  friend  of  insane  person  may 

appeal. 
5.  All  united  in   interest   must  join  in 
appeal    or   error.      Especially    in 
equity  causes. 

6.  Separate    appeal    permitted    where 

interest  is  separate. 

7.  Party  added  by  order  of  court  may 

ask  review. 

8.  Statutory    receiver    of    corporation 

may  appeal. 

9.  Receiver  cannot  appeal. 

10.  Purchaser  at  Judicial  Sale  may  appeal. 

11.  Procedure  for  severance  of  record. 

12.  Special    notice    unnecessary    when 

taken  in  open  court. 

13.  Severance  by  amendment  to  bring 

in  omitted  parties. 

14.  Waiver  of  severance. 


Sec. 

(a)  Dismissal  for   want  of  com- 
pliance with  the  above  rule. 

15.  When    intervenors    may    appeal — 

refusing  intervention. 

16.  Leave     to     appeal     compelled     by 

mandamus. 

17.  Appeal   the   method    of   review   in 

intervention. 

18.  Intervenor  may  appeal  also. 

(a)  After  cause  dismissed. 

(b)  After  intervention  granted. 

(c)  All  parties  to  be  brought  into 
court. 

19.  Persons    not    parties    to    record — 

when  heard. 

20.  Only  those  affected  may  assail  con- 

stitutionality of  a  statute. 

2 1 .  Who  may  assail  state  statutes. 

22.  Government  cannot  appeal  or  bring 

certiorari  in  criminal  cases,  except 
under  Criminal  Appeals  Act. 

23.  Suits  in  forma  pauperis:    Seamen's 

Suits. 

(a)  The  Statute. 

(b)  Construction  of  Statute. 


CHAPTER  IV 
What  Constitutes  Reversible  Error 


Sec 
1. 
2. 


Reversal  on  error  limited. 

On  trial  by  jury,  weight  of  evidence 

not  reviewed — Remarks  of  the 

Court. 
Review  confined  to  questions  of  law. 
Scope  of  inquiry  in  trial  before  the 

court.     The  evidence. 


Sec. 
5. 
6. 


Conclusions  of  law  not  conclusive. 
Review  of  record  in  Deportation  and 

Habeas  Corpus  cases. 
Granting    or    refusing    new    trial. 

Refusal  to  entertain  motion. 
Excluding  affidavits  on  motion  for 

new  trial. 

(ix) 


TABLE    OF   CONTENTS 


Sec.  Sec. 

9.     Refusal  to  exercise  discretion.  25. 

10.  Injury  to  appellant  as  result  of  error 

in  record  presumed.  26. 

11.  Reversal  on  court's  own  motion. 

12.  Criminal     cases.     The     reviewing      27. 

court  may  notice  plain  error  in 
charge  without  objection. 

13.  Errors  not  jurisdictional  not  con-      28. 

sidered  unless  raised  below.  29. 

(a)  Exception. 

14.  Misjoinder  must  be  raised  below.  30. 

15.  Rulings  on  amendments  of  plead- 

ings,    (a)  Not  bound  to  follow      31. 
state  practice. 

(b)  During  trial.  32. 

16.  Defect  in  pleading  must  be  raised      33. 

below.  34. 

17.  Practice  on  demurrer  or  Motion  to 

dismiss.  35. 

18.  Insufficiency    of    evidence  waived 

by    defendant     by     introducing 
evidence. 

19.  When  insufficiency  of  evidence  is      36. 

not  waived.  37. 

20.  Objections  to  evidence,  how  made. 

21.  Objections  to  evidence  in  equity  and      38. 

admiralty  appeals.    Rule  of  prac- 
tice. 39. 

22.  Error  in  excluding  material  evidence. 

23.  Motion    to    withdraw    case    from      40. 

jury — when  to  be  made. 

24.  Review  of  directed  verdict.  41 . 


Error  in  instructing  jury — Excep- 
tion necessary. 
The  Court  need  not  follow  language 

of  requested  charge. 
Judge  may  express  an  opinion  on 

evidence. 

(a)  Exception. 
Singling  out  facts  prohibited. 
Function  of  trial  judge  in  charging 

the  jury. 
Verdict  of  guilty  cannot  be  directed 

in  criminal  cases. 
Every  question   of   fact   must   be 

submitted  to  jury. 
Reasonable  interpretation  of  charge. 
Chargemustbe  considered  asa  whole. 
Charge  must  be  preserved  in  bill  of 

exceptions. 
Improper    comments    of    District 

Attorney — Objections  thereto. 

(a)  Good  character. 

(b)  Privilege  of  defendant. 

Excessive  damages  not  reviewable. 

Criminal  Verdicts.    Any  count  suffi- 
cient to  sustain. 

Trial  before  the  court.     Limitation 

of  review. 
Common  law  trial  without  jury. 

Limitation  of  review. 
Findings  of  Referee  in  a  common  law 

action  reviewable. 
Misconduct  of  jury. 


CHAPTER  V 

Appeals  and  Writs  of  Error  from  U.  S.  District  Court  Direct  to 
U.  S.  Supreme  Court 


Sec. 

1.  Statutory   provision:  §238   Federal 

Judicial  Code. 

2.  Clause  I.      Jurisdiction     of     the 

Court  in  issue. 


Sec. 


3.  Jurisdictional  amount  not  required. 

4.  "Jurisdiction    of    Court    in    issue" 

means  its  jurisdiction  as  a  Federal 
Court. 


TABLE   OF   CONTENTS 


Sec.  Sec, 

5.  Definition   of   Jurisdiction   by   Mr.      30. 

Justice  Holmes.  31. 

6.  Mere  challenge  of  jurisdiction  not 

sufficient. 

7.  Jurisdictional    claim    by    reason    of      32. 

illegal  service  of  process. 

8.  Affidavits  attached  to  plea  of  juris-      33. 

diction  considered  on  appeal. 

9.  Challenging    jurisdiction    as    Court      34. 

of  Equity  insufficient. 

10.  Question  of  venue  reviewable.  35. 

11.  Dismissal   of    bankruptcy   proceed- 

ings for  lack   of  jurisdiction   re-      36. 
viewable. 

12.  Jurisdictional   issue    as    understood 

by  the  parties. 

13.  In  capital  cases,  character  of  crime      37. 

is  test  of  jurisdiction.  38. 

14.  Orders  in  arrest  cases  not  review- 

able. 39. 

15.  When  dismissal  order  in  interstate 

commerce  case  reviewable.  40. 

16.  When   no   question   of   jurisdiction 

certified,  not  reviewable.  41. 

17.  When   Supreme   Court  will  review 

the  whole  case. 

18.  Necessity  of  certifying  jurisdictional      42. 

question. 

19.  Mode  of  certification. 

20.  What  is  a  sufficient  certification. 

21.  When  certificate  not  required. 

22.  When  decree  is  equivalent  to  certi-      43. 

ficate. 

23.  Time  to  issue  certificate. 

24.  Clause    II.     Prize  causes  review- 

able. 44. 

25.  Amendments  permitted. 

26.  Judgment  or  decree  on  review.  45. 

27.  Clause  III.     When  constitutional 

questions  are  reviewed  exclusively      46. 
by  the  Supreme  Court. 

28.  Substantial   constitutional    question      47. 

a  jurisdictional  prerequisite. 

29.  When  optional  to  appeal  to  Supreme      48. 

Court  or  Court  of  Appeals. 


Cross-appeals. 

Specific  constitutional  question  must 
appear  from  plaintiff's  statement 
of  claim. 

Facts  and  law  must  be  well 
pleaded. 

Defendant  may  raise  constitutional 
question  by  answer. 

Entire  case  and  every  question  will 
be  reviewed. 

Constitutional  question  arising  dur- 
ing trial. 

When  constitutional  question  has 
been  decided  pending  appeal. 
Jurisdiction  retained  on  other 
branches  of  case. 

Frivolous   constitutional    questions. 

Clause  IV.  Construction  of  Federal 
treaties  direct  to  Supreme  Court. 

Issue  must  be  raised  in  court 
below. 

Non-resident  alien  may  raise  ques- 
tion. 

Clause  V.  When  state  constitu- 
tion or  law  is  contrary  to  U.  S. 
Constitution,  direct  appeal  lies. 

Interlocutory  injunctions.  Juris- 
diction of  the  Supreme  Court  on 
direct  appeal  under  the  Act  of 
March  4,  1913,  restricting  the 
issuance.     The  Statute. 

Appeals  from  interlocutory  injunc- 
tions in  Interstate  Commerce 
cases  under  Act  of  October  22, 
1913. 

Jurisdiction  of  Supreme  Court  un- 
der said  act. 

Applies  to  order  by  Administrative 
Board  or  Commission. 

Cannot  restrain  public  officer  from 
constitutional  act. 

Supreme  Court  on  review  may  de- 
termine every  question. 

Can  review  action  of  State  Public 
Utilities  Commission. 

(xi) 


TABLE   OF  CONTENTS 


Sec. 

49.  When  injunction  was  refused. 

50.  Criminal  Appeals  Act.    Jurisdic- 

tion of  Supreme  Court  on  appeal 
by  government. 

51.  Limitation  of  review. 


Sec 

53.  Misconstruction  of  statute  review- 

able. 

54.  Construction  of  indictment  by  court 

below. 
52.  Indictment  bad  in  law  not  review- 
able. 


CHAPTER    VI 


Jurisdiction  of  the  Circuit  Court  of  Appeals  of  the  United  States 


Sec. 
1. 


8. 

9. 

10. 

11. 


Statutory  provision.  §  128  Federal 
Judicial  Code  defines  powers  and 
jurisdiction  and  includes: 

(a)  Patents. 

(b)  Trademarks. 

(c)  Copyrights. 

(d)  Revenue. 

(e)  Criminal. 

(f)  Admiralty. 

Court  of  Appeals  has  no  jurisdic- 
tion when  jurisdiction  of  court 
below  was  only  question  in  issue. 

When  Court  of  Appeals  has  jurisdic- 
tion when  other  questions  are 
involved. 

Question  of  excess  of  authority  of 
trial  court  reviewable  in  Court  of 
Appeals. 

Power  to  issue  writs  of  prohibition 
and  mandamus  in  aid  of  appellate 
jurisdiction. 

When  jurisdiction  attaches. 

Bankruptcy.  Jurisdiction  of  the 
Circuit  Court  of  Appeals.  Statu- 
tory provisions. 

Review  and  revise. 

By  appeal  in  ten  days. 

Decision  in  the  above  causes  final, 
but  may  be  reviewed  by  certiorari. 

Construction  of  Sections  23,  24,  and 
25  of  the  Bankruptcy  Act. 

(xii) 


Sec. 

12.  Care  should  be  taken  in  selecting 

mode  of  review. 

13.  Section24b.  Distinction  between  §24b 

and  controversies  in  bankruptcy. 

14.  Time  to  bring  petition  to  revise. 

15.  Remedies  exclusive. 

16.  Petition  to  revise  must  assign  error 

of  law. 

17.  When  petition  to  revise  used. 

18.  Decrees  must  have  definiteness  and 

finality. 

19.  Evidence  may  be  reviewed. 

20.  Only  questions  of  law  reviewable  by 

petition  to  revise. 

21.  How  to  review  election  of  trustee. 

22.  Appeals  under  §  25,  Clause  3,  Bank- 

ruptcy Act. 

23.  When  review  is  by  appeal.     Inter- 

vention. 

24.  Plenary    suits    and    summary    pro- 

ceedings. 

25.  Test  of  summary  jurisdiction. 

26.  Court  may  take  actual  possession 

of  property. 

27.  When  substantiality  appears  plen- 

ary. 

28.  When    referee    has    no    jurisdiction 

over    questions    of     recovery    of 
property.     Adverse  claims. 

29.  Plea  to  jurisdiction  must  be  denied 

by  reply  or  replication. 


TABLE  OF  CONTENTS 


Sec. 

30.  Evidence  on  general  inquiry  compe- 

tent only  on  question  of  jurisdic- 
tion. 

31.  Findings  of  referee  not  conclusive. 

32.  Admiralty.     Decision     of     Circuit 

Court  of  Appeals  is  final. 

33.  Prize  causes. 

34.  Seizures  on  land  under  common  law. 

35.  Time  limit  for  appeal — six  months. 

36.  Appeal  is  a  trial  de  novo. 

37.  Assignment  of  error  on  joint  appeals. 

38.  The  statute— Record. 

39.  How  the  record  is  made  up  in  ad- 

miralty— The  Apostles. 

40.  One  record  when  both  sides  appeal. 

41.  Contents  of  record. 

42.  Objections  to  evidence — how  availed 

of. 

43.  Stipulating  the  record. 

44.  Filing  record — Time  limit. 

45.  Mandamus  may  be  awarded. 

46.  Docketing. 

47.  New  pleadings. 

48.  New  proof  on  appeal. 

49.  Hearing  on  appeal — Notice  limiting 

questions. 


Sec. 
50. 


51. 


Tucker  Act,  now  Paragraph  20 
of  Section  24,  Federal  Judicial 
Code. 

Interlocutory  Orders  involving 
Injunctions  and  Receivership. 
Statute  permitting  appeal,  §  129 
Federal  Judicial  Code.  Jurisdic- 
tion of  the  Court  of  Appeals. 

52.  Equity  Rule  LXXIV.     Continuing 

injunction  pending  appeal. 

53.  Supersedeas  bond  not  sufficient  to 
suspend  or  continue  injunction. 

Effect  of  appeal  on  pending  cause. 

Scope  of  appeal  limited  to  injunc- 
tion. 

When    injunction    dissolved, 
broadened. 

Enjoining  proceedings  in  State 
courts. 

Federal  Trade  Commission.  Juris- 
diction of  the  Court  of  Appeals. 

Powers  of  the  Commission. 

60.  Procedure  before   Commission  and 

U.  S.  Court  of  Appeals. 

61.  Further  Proof. 

62.  Service  of  process. 


54. 
55. 

56. 

57. 

58. 

59. 


scope 


CHAPTER  VII 

Jurisdiction  of  the  Supreme   Court  of  the  United  States  on 
Appeal  or  Error  from  the  U.  S.  Circuit  Court  of  Appeals 


Sec. 

1.  From    Circuit    Court    of    Appeals, 

§241    Federal    Judicial   Code. 

2.  Rules  of  Practice. 

(a)  Rule  40  of   U.   S.    Supreme 
Court. 

(b)  Mode  of  reexamination. 

3.  Judgment  must  be  final. 

4.  When  appealable  to  Supreme  Court. 

5.  Amended  bill  may  extend  ground 

of  jurisdiction. 


Sec. 

6.  Corporation    organized    under    Act 

of  Congress. 

7.  No  review  in  admiralty,  contempt, 

or  criminal  causes. 

8.  When   a    party    cannot    have    two 

appeals. 

9.  Scheme  of  appellate  jurisdiction. 

10.  Two  appeals  to  save  remedy — How 

disposed  of. 

11.  Jurisdictional  amount. 

(xiii) 


TABLE   OF   CONTENTS 


Sec. 

12.  Where  no  jurisdictional  amount  is 

required. 

13.  How  to  show  jurisdictional  amount. 

14.  No    jurisdiction   to  interpret   man- 

date of  Circuit  Court  of  Ap- 
peals. 

15.  Upon    reversal    in    Court    of    Ap- 

peals, case  cannot  after  second 
trial  be  taken  direct  to  Supreme 
Court. 

16.  Certified  questions.     §§  239  and  251 

of  Federal  Judicial  Code. 

17.  The     rule     of    court.       Rule     37, 

Supreme  Court. 

18.  Only  specific  questions  to  be  certified. 

19.  Specific    propositions    of    law    only 

will  be  considered  and  answered. 

20.  Categorical  answers. 

21.  Questions   in    bankruptcy   may   be 

certified. 

22.  No    certification    after    decision    in 

Circuit  Court  of  Appeals. 

23.  Clerk's    fee    must    be    paid    before 

record  furnished. 


Sec. 

24.  Record  must  be  furnished  on  applica- 

tion. 

25.  Form  of  certificate. 

26.  Jurisdiction  of  the  U.  S.   Supreme 

Court  in  bankruptcy. 

27.  Under   the   new   law   no  appeal  in 

bankruptcy  lies  to  the  Supreme 
Court. 

28.  Prohibition  and  mandamus.     Prohi- 

bition limited  to  admiralty. 

29.  Mandamus  used  in  aid  of  appellate 

jurisdiction. 

30.  Mandamus   allowed  in   absence   of 

appellate  remedy. 

31.  General  use  of  mandamus. 

32.  Mandamus  when  inferior  court  acts 

without  authority. 

33.  Ministerial  duty  exclusively. 

34.  Mandamus  to  compel   reversal  will 

not  lie. 

35.  Judgment  on   mandamus  reviewed 

by   writ   of   error. 

36.  Mandamus     jurisdiction     of     U.  S. 

District    Court. 


CHAPTER  VIII 

Certiorari  from  U.  S.  Supreme  Court  to  U.  S.  Circuit  Court  of 

Appeals. 


Sec. 

1.  Jurisdiction  of  the  Supreme  Court 

of  U.  S. 

2.  New  Legislation — Act  of  September 

6,  1916. 

3.  Stay  by  Court  of  Appeals. 

4.  Circuit  Court   of  Appeals  has  no 

power  to  allow  certiorari  to 
Supreme  Court. 

5.  Instructions  relative  to  application 

for  writs  of  certiorari  under  Act 
of  March  3,  1891,  issued  by  the 
clerk  of  the  Supreme  Court. 

6.  Contents  of  petition — Notice. 

(xiv) 


Sfc. 

7.  Time  limit  for  application. 

8.  Petition  may  be  filed  in  vacation. 

9.  Review  confined  to  errors  specified 

in  petition. 

10.  Errors  not  raised  in  trial  court  and 

not  in  record. 

11.  At  what  stage  certiorari  may  issue: 

(a)  At  any  time. 

(b">  As  a  rule  jurisdiction  declined 
before  final  judgment. 

12.  Scope  of  review. 

(a)  Every     question     raised     by 
assignment    considered. 


TABLE   OF  CONTENTS 


Sec. 

(b)  Disposition  on  merits. 

13.  Questions  not  raised  in  trial  court 

but  passed  upon  by  Court  of  Ap- 
peals may  be  reviewed. 

14.  Effect  of  refusal  of  Court  of  Appeals 

to  take  jurisdiction. 

15.  Certiorari  in  interlocutory  appeals. 

16.  More  than  one  writ  allowed — when. 

17.  No  jurisdictional  amount. 

18.  Administrative  orders  not    review- 

able. 

19.  Certiorari    will    not    lie    where    an 

appeal  may  be  taken. 

(a)  In  general. 

(b)  Trademark  cases. 

(c)  Contempt  proceedings. 

(d)  Cases  in  Admiralty. 

(e)  Habeas  Corpus. 

(f)  Criminal  cases. 

20.  Where  both  certiorari  and  writ  of 

error  may  be  resorted  to. 

21.  When  the  writ  of  certiorari  will  lie: 


Sec. 

(a)  No  definite  rule. 

(b)  Not  issued  as  of  right — Only 
in  important  cases. 

(c)  To  correct  excesses  of  juris- 
diction. 

(d)  Vests  final  control  in  Supreme 
Court. 

(e)  To  avoid  conflict  of  courts. 

(f)  National  questions. 

(g)  Matters  of  navigation, 
(h)  Court  of  Appeals  divided. 

(i)  For  the  sake  of  uniformity  of 
law. 

(j)  Conflict  of  decision  affecting 
same  patent. 

(k)  Disqualification  of  judge. 

(1)  Jurisdiction  of  Court  of  Ap- 
peals in  issue. 

(m)  In  criminal  cases. 

22.  Effect  of  allowance  of  the  writ. 

23.  Mandate  on  certiorari. 

24.  Refusal  of  writ — effect  of. 


CHAPTER  IX 


Review  of  Decisions  of  the  Highest  Courts  of  the  State — Juris- 
diction of  the  Supreme  Court  over  State  Courts 


Sec. 

1.  Method  of  review — by  writ  of  error 

or  certiorari. 

2.  When  either  error  or  certiorari  may 

be  invoked. 

(a)  Validity  of  Federal  laws. 

(b)  Validity  of  State  laws. 

3.  Where    validity    of    a    law    is    not 

challenged,  the  propriety  of 
Federal  claim  is  reviewable  only 
by  certiorari. 

4.  Distinction   between   writ   of   error 

and  certiorari. 

5.  The  Act  of  September  6,  1916. 

6.  No  jurisdictional  amount  required. 

7.  Federal  law  controls  procedure. 


Sec. 

8.  Writ  of  error — by  whom  allowed. 

9.  Procedure  indicated. 

10.  Procedure  on  certiorari. 

11.  Time  for  suing  out  writ. 

12.  Decisions    reviewable — final    deter- 

mination necessary. 

13.  What  constitutes  a  final  adjudica- 

tion. 

14.  When  reservation  in  decree  does  not 

affect  its  finality. 

15.  When  a  decree  of  foreclosure  is  final. 

16.  The  jurisdiction  of  the  U.  S.  Supreme 

Court  not  affected   by  form   of 
judgment,  provided  it  is  final. 

17.  When  decision  not  reviewable. 

(XV) 


TABLE   OF   CONTENTS 


Sec.  Sec. 

(a)  Order  in  chambers.  35. 

(b)  Remand  with  instructions. 

(c)  Reversal  for  further  proceed-      36. 

ings. 

18.  Moot  questions  not  reviewable.  37. 

19.  "Highest  State  Court"  defined. 

20.  When  an  inferior  court  may  be  so      38. 

regarded.  39. 

21.  When     highest     court     refuses     to 

entertain  jurisdiction.  40. 

22.  Every  method  of  obtaining  review 

must  be  exhausted.  41. 

23.  In  New  York — to  which  court  writ 

addressed. 

24.  Who  may  sue  out  writ  of  error.  42. 

(a)  Limited  to  parties  to  record. 

(b)  Must  have  personal  interest.       43. 

25.  Who  must  be  named  as  plaintiffs  in 

error — joint  parties.  44. 

26.  When  interests  are  separate. 

27.  Severing    the     record  —  practice —      45. 

notice. 

28.  Raising  a   Federal  question — juris-      46. 

dictional  pre-requisite — method  of 
raising :  47. 

(a)  By     an    adequate     specifica- 

tion    or     an     appropriate      48. 
pleading. 

(b)  By  motion.  49. 

(c)  By  exception. 

(d)  By     other     action,     showing      50. 

Federal     claim      or      right      51. 
presented  to   Court. 

29.  Federal    right    must    be    positively 

asserted.  52. 

30.  Specific  section  of  statute  or   Con- 

stitution must  be  set  out.  53. 

31.  Confounding  the  Fifth  Amendment 

with  the  Fourteenth.  54. 

32.  Issue  of  law  must  be  definite.  55. 

33.  Federal    claim    cannot    be    spelled 

out  by  resort  to  judicial   know- 
ledge. 56. 

34.  No  special  form  required  for  raising 

Federal  question. 

(xvi) 


As  a  rule  Federal  question  must  be 
raised  in  Trial  Court. 

Setting  up  Federal  claim  in  an  as- 
signment of  errors — when  proper. 

First  raised  in  Appellate  Court — 
when  seasonable. 

Not  raised  in  highest  court  fatal. 

Certificate  of  State  Chief  Justice 
insufficient  to  confer  jurisdiction. 

When  the  state  court  impliedly 
passed  upon  Federal  claim. 

Petitions,  briefs,  and  assignment  of 
errors  insufficient  to  prove  ques- 
tion raised. 

Federal  question  raised  in  petition 
for  rehearing. 

Local  law  not  considered  except 
when  controlling  Federal  question. 

What  the  decision  of  state  court 
must  show. 

Change  of  rule  by  recent  legisla- 
tion. 

When  statement  in  state  court's 
opinion  insufficient. 

When  omission  to  refer  to  Federal 
question  not  fatal  to  a  review. 

U.  S.  Supreme  Court  not  limited  to 
opinion  of  state  court. 

Misconstruction  of  Act  of  Congress 
— the  record. 

Frivolous  Federal  questions. 

Judgments  sustainable  on  non- 
Federal  ground — cannot  be  re- 
viewed. 

Example; — laches  as  a  non-Federal 
ground. 

Rule  where  Federal  question  is 
controlling. 

Damages  for  delay. 

Review  of  findings  of  fact — general 
rule — findings  of  fact  are  not 
reviewable. 

Exceptions  to  foregoing  rule: 

(a)  Unsupported  by  evidence. 

(b)  Law  and  fact  intermingled. 


TABLE   OF   CONTENTS 


Sec.  Sec. 

(c)  Findings  not  specific. 

(d)  Findings  relating  to  service  of 

process.  77. 

57.  What    are    Federal    questions — the 

Fourteenth  Amendment.  78. 

Challenging  the  constitutionality 

of  State  Statutes.  79. 

58.  Application  and  effect. 

59.  Habeas  Corpus  from  state  court. 

60.  Notes  on:  "Due  Process  of  Law." 

"Equal     Protection    of     the 
Law." 

61.  Class  legislation  prohibited. 

62.  Embraces    all     agencies     of    State      80. 

including  the  Judiciary.  81. 

63.  Guaranties.  82. 

64.  Includes  the  State  Judiciary. 

65.  Where  a  party  had  opportunity  to 

be  heard.  83. 

66.  No  due  process  if  without  notice. 

67.  A  state  cannot  prevent  the  object  of      84. 

due  process.  85. 

68.  "Due  process"  applied  to  judicial      86. 

proceedings.  87. 

69.  Notice  necessary  before  judgment.        88. 

70.  Question    of    due    service    of    pro-       89. 

cess. 

71.  Supreme  Court  will  decide  whether      90. 

due  process  denied. 

72.  Service  of  process  on  foreign  cor- 

poration. 91. 

73.  "Due    process"    synonymous    with 

"the  law  of  the  land. "  92. 

74.  Due    process    as    used    in    Magna 

Charta.  93. 

75.  Substance,  not  form,  governs. 

76.  Notes  on:  "Impairing  Obligations      94. 


of  a  Contract."    Governed  by 

theory  of  case. 
What   is   sufficient   to   show   claim 

under  contract  clause. 
Supreme  Court  of  U.  S.  not  bound 

by  finding  of  state  court. 
Ordinances: 

(a)  An  ordinance  has  the  force  of 

law — effect  on  contracts. 

(b)  Ordinances     as     contracts — 

when    ordinance    is    volun- 
tarily accepted. 

(c)  When  void  under  state  law. 
Charters  held  inviolable. 
Claims  under  Federal  Statutes. 
Notes     on     "Full     Faith     and 

Credit."  Constitutional  provi- 
sions. 

Failure  to  give  effect  to  Federal 
judgment. 

Force  to  be  given  Federal  judgment. 

Judgments  of  the  same  jurisdiction. 

Navigable  waters  of  the  U.  S. 

Federal  and  state  legislation. 

Federal  land  titles. 

Questions  under  the  Banking  Laws 
of  the  United  States. 

Questions  under  patent  laws,  when 
validity  not  involved,  no  Federal 
question. 

Mining  claims  —  a  Federal  ques- 
tion. 

Questions  of  res  adiudicata  not 
Federal. 

Claim  under  the  Bankruptcy  Laws 
of  the  U.  S. 

No  writ  in  forma  pauperis. 


(xvii) 


TABLE   OF   CONTENTS 

CHAPTER  X 

Appeals  from  Court  of  Claims — Jurisdiction  of  U.  S.  Supreme 

Court 


Sec. 

1.  A  statutory  appeal,  §  181  of  Federal 

Judicial  Code. 

2.  Jurisdictional  amount — three   thou- 

sand dollars. 
Not    required    when    U.    S.   is    ap- 
pellant. 

3.  Time  to  appeal. 

4.  Fraudulent  claim  forfeited. 

5.  Right  to  appeal. 

6.  Who  may  not  claim  or  prosecute. 


Sec. 

7.  Written  application  for  appeal  ne- 

cessary— Order  allowing  appeal. 

8.  Contents  of  record  on  appeal. 

9.  Time  limit  ends  at  application  to 

allow  appeal. 

10.  Findings  of  fact  and  conclusions  of 

law  to  be  made. 

11.  Parties  to  submit  findings. 

12.  Applied    to    District    of    Columbia 

Claims  Act. 


CHAPTER  XI 


The  Court  of  Customs  Appeals 


Skc 

Sec 

1. 

The  Statute   creating   the  Court, 

14. 

Attorneys. 

§  188  Federal  Judicial  Code. 

15. 

Process. 

2. 

Court  never  closes. 

16. 

Review. 

3. 

Executive  officer  of  Court. 

17. 

Assignment  of  errors. 

4. 

Clerk  of  Court — powers  and  duties. 

18. 

Mandate. 

5. 

Assistant  clerks,  etc. 

19. 

Calendar. 

6. 

Place  for  holding  Court. 

20. 

Records  and  briefs. 

7. 

Powers  of  the  Court. 

21. 

Sessions. 

8. 

Jurisdiction   of    Court   of   Customs 

22. 

Appeals,  when  taken. 

Appeals. 

23. 

Amendments — Judgments. 

9. 

Transfer  of  review  from  other  courts. 

24. 

Final  decision — Mandate. 

10. 

Cases  pending  transferred. 

25. 

Fees  of  clerk  and  marshal. 

11. 

Time  for  appeal.     Record. 

26. 

Arguments. 

12. 

No     delay     in     hearing.     Call     of 

27. 

Appearances. 

calendar. 

28. 

Applications  for  rehearing, 

13. 

The  Rules  of  the  Court.    The 
Clerk, 
(xviii) 

TABLE  OF  CONTENTS 

CHAPTER  XII 
Appeal  and  Error  from  Various  Territorial  Courts 


Sec. 


From  Court  of  Appeals  of  District  of 

Columbia.     Limit  of  jurisdiction. 
Appeals  and  writs  of  error  from  District 

Courts  of  Porto  Rico  and  Hawaii. 
Jurisdiction  of  the  U.  S.  Circuit  Court 

of  Appeals. 
Appeals  and  writs  of  error  direct  to 

Supreme  Court. 
Appeals    and    writs    of    error    from 

Supreme  Court  of  Porto  Rico  and 

Hawaii — Time. 


Sec. 

6.  Time   for   appeal   and  error — Porto 

Rico. 

7.  From  the  Supreme  Court  of  Philip- 

pine    Islands.     Procedure    limited 
to  certiorari. 

8.  Special    provisions   as    to    courts    of 

Alaska. 

9.  Appeals  and  writs  of  error  from  Dis- 

trict Court  of  Alaska  direct  to  the 
Supreme  Court. 


CHAPTER  XIII 


Appeals  in  Habeas  Corpus  Cases 


Sec. 

1.  Appeals  statutory  and  of  right. 

2.  When  writ  will  issue — No  hard  and 

fast  rule. 

3.  Appellate  tribunal  prescribes  mode 

of  appeal — The  Statute. 

4.  Custody  of  prisoner  pending  appeal 

— Court  rules. 

5.  Acts  of  State  courts  pending  appeal 

to  Federal  Court  void. 

6.  Certificate  from  Federal  judge  pre- 

requisite to  appeal  to  Supreme 
Court  of  U.  S.  in  causes  under 
State  process. 

7.  Special  uses  of  writ. 

8.  Constitutionality  of  Act  cannot  be 

tested  by  habeas  corpus  in 
criminal    cases. 

9.  Sufficiency  of  indictment  cannot  be 

tested  by  habeas  corpus. 
10.  Cannot  replace  writ  of  error. 


Sec. 

11.  Administration  of  State  law. 

12.  Errors   of   law   not   reviewable    by 

habeas  corpus. 

13.  Contempt      before       Congressional 

Committee. 

14.  Removal  proceedings. 

15.  Deportation  cases. 

16.  Inquiry  limited  to  question  whether 

petitioner  had  fair  hearing. 

17.  Right   of   deportation — How  to    be 

exercised. 

18.  Release  conditional. 

.T9.  When     challenge     of     jurisdiction 
permitted. 

20.  Summary  of  the  doctrine. 

21.  Extradition  cases. 

22.  Former  jeopardy. 

23.  Under  process  of  House  of  Repre- 

sentatives. 

(xix) 


TABLE   OF   CONTENTS 


CHAPTER  XIV 
Contempt  of  Court — Review 


Sec. 
1. 

2. 
3. 
4. 
5. 
6. 
7. 

8. 
9. 

10. 
11. 

12. 
13. 

14. 

15. 
16. 

17. 

18. 

19. 
20. 
21. 


Sec. 
The  power  of  the  Federal  courts,      22. 

§  268  Federal  Judicial  Code. 
Construction  of  statute.  23. 

No  change  of  venue  or  jury  trial. 
"  Presence  of  the  court "  defined.  24. 

Falsification  of  evidence.  25. 

Misconduct  in  court. 
Obstruction  of  due  administration  of      26. 

justice.  27. 

Attack  on  plaintiff's  attorney. 
Attempt   to   influence   juryman   on      28. 

street.  29. 

Attorney  an  officer  of  court. 
Assault  on  officer  on  duty.  30. 

Language  intended  to  incite.  31. 

Advice   of   counsel   no    defense   on 

failure  to  produce  papers.  32. 

Interference       with       property     in 

custody  of  Bankruptcy   Court.         33. 
Inability  to  comply  with  order. 
Classes    of     contempt — Distinction      34. 

between    civil   and    criminal. 
Review    of    civil    contempt,    when      35. 

allowed. 
Diligence      in      prosecuting      civil 

contempt.  36. 

Punishment  for  civil  contempt. 
Procedure  in  criminal  contempt.  37. 

Information  against  defendant. 


Contempt  out  of  court — Affidavits 

necessary. 
Criminal    contempt — Privileges     of 

defendant. 
Weight  of  evidence  not  reviewed. 
Perjury  in  civil  proceeding — When 

not  contempt. 
Relation  to  original  proceeding. 
Decree     should     indicate     hearsay 

evidence  rejected. 
Nature  of  pleading. 
Disobedience  of  order  of  Supreme 

Court. 
Cannot  be  purged  by  mere  answer. 
Contempt     conviction     no    bar    to 

criminal  prosecution. 
Criminal    Contempt — Mode   of    re- 
view. 
Criminal  contempt  by  a  stranger  to 

record. 
Petition  to  revise  in  civil  contempt 

in  bankruptcy. 
Mandamus  from  Supreme  Court  to 

Court    of    Appeals    to    entertain 

jurisdiction  in  contempt. 
Innocent    conduct    as    contempt — 

Review  of  State  Court. 
Imprisonment. 


CHAPTER  XV 

Federal  Appellate  Procedure. 

I.  Preliminary  Steps  for  Securing  Appeal  or  Writ  of  Error 


Sec. 
1.  Former    practice  of    King's   Bench 
retains     to     limited    extent     in 
Supreme  Court. 

(xx) 


Sec. 
2.  Time  for  appeal,  etc. — to  Supreme 
Court,  three  months;   Philippine 
Islands,  six  months. 


TABLE   OF   CONTENTS 


Sec 

Sec. 

3. 

Time  for  appeal  or  error  to  U.  S. 

33. 

Court  of  Appeals — six  months. 

34. 

4. 

In  interlocutory  appeals — 30  days. 

35. 

5. 

In  civil  anti-trust  causes — 60  days. 

36. 

6. 

In  capital  cases — 60  days. 

37. 

7. 

Date  of  allowance  of  appeal  or  error 
not  material,  if  prayed  in  time. 

38. 

8. 

When  the  time  to  appeal  may  be 

extended. 

39. 

9. 

How  time  is  calculated. 

40. 

10. 

When     the     time     commences     to 
run. 

41. 

11. 

Time  to  appeal  cannot  be  extended 

42. 

by  stipulation. 

43. 

12. 

Who  may  allow  appeal  or  error  to 

44. 

the  U.  S.  Supreme  Court. 

45. 

13. 

To  U.  S.  Court  of  Appeals. 

14. 

Power  of  judge  of  Circuit  Court  of 

46. 

Appeals. 

47. 

15. 

Special    procedure    in    bankruptcy 

48. 

appeals. 

49. 

16. 

In  bankruptcy  appeals  joint  parties 
must  unite  or  sever  record. 

17. 

Petition  and  assignment  of  errors. 

18. 

Order  allowing  appeal  or  error. 

50. 

19. 

Writ    of    error — How    issued    and 

51. 

served. 

52. 

20. 

Form  of  writ  of  error. 

53. 

21. 

Describing  the  parties. 

54. 

22. 

Amendment  of  writ  of  error. 

23. 

Assignment  of  errors — Necessity  for 

55. 

assignment  of  error. 

56. 

24. 

Prayer  for  reversal. 

57. 

25. 

Form  of  assignment  of  errors. 

26. 

Assignments  held  bad. 

58. 

27. 

Assignments  held  good. 

59. 

28. 

Effect  of  plain  error. 

60. 

29. 

Cross-assignments  of  error  not  per- 

61. 

mitted.     Cross-appeals. 

62. 

30. 

Where  both  parties  appeal  to  the 

Supreme  Court,  one  record  suffi- 

63. 

cient. 

31. 

Bond — The  statute. 

64. 

32. 

In  criminal  cases. 

Filing  the  bond. 
Who  must  sign  bond. 
Who  may  approve. 
To  whom  made. 
Time  for  filing  bond. 
Citation. 

(a)  The  Statute. 

(b)  The  Rule  of  Court. 

Time  of  return  of  citation. 

Appellate  Court  may  issue  citation. 

When  lack  of  citation  is  not  jurisdic- 
tional. 

Parties  to  citation. 
When  citation  unnecessary. 
Necessary  if  bond  filed  after  term. 
Necessary    if    appeal    taken    after 

term. 
Imperative  on  writ  of  error. 
Waiver  of  objection  to  insufficiency. 
Service  on  attorney  sufficient. 
Supersedeas — Time   for  application 
— 60  days. 

(a)  The  Statute. 

(b)  The  Rule  of  Court. 
Prerequisites  for  supersedeas. 
Lodgment  of  writ  of  error. 

A  matter  of  right — function  of  court. 

Requiring  better  security. 

Supersedeas  and  bail  in  criminal 
cases. 

Stay  of  death  penalty — The  Statute. 

Time  for  filing. 

Effect  of  perfecting  appeal  on  writ 
of  error.     Transfer  of  jurisdiction. 

Proceedings  in  the  lower  court. 

A  matter  of  right. 

Setting  aside  appeal. 

Second  appeal — When  allowed. 

Second  appeal  subsequent  to  man- 
date. 

Special  procedure  in  admiralty — 
Taking  the  appeal. 

Supersedeas  in  admiralty. 


(xxi) 


TABLE   OF   CONTENTS 

CHAPTER  XVI 

Federal  Appellate  Procedure 

II.    The  Record 


Sec 
1. 
2. 
3. 
4. 


What  is  a  record — Definition. 
Record  cannot  be  impeached. 
Duplications  in  record  not  permitted. 
"Common  Law  Record" — What  it 
consists  of. 

5.  Papers  in   the  record — How  incor- 

porated and  certified. 

6.  Opinions  of  the  court  are  part  of  the 

record. 

7.  The    record — How    made    and    re- 

turned— The  Statute. 

8.  Diligence  required  of  plaintiff  in  error. 

9.  The  Rules  of  Court. 


Sec. 

10.  Praecipe    for    record     to     be     filed 

— Notice — Ten  days  to  designate 
portions  of  record. 

11.  Practice  same  in  U.   S.   Courts  of 

Appeal. 

12.  Record  must  at  least  contain  com- 

mon law  requisites. 

13.  Parties  may  agree  what  record  should 

contain. 

14.  Time  for  return — 30  days — Exten- 

sion. 

15.  Record  must  be  complete.     Refer- 

ence to  other  record  not  permitted. 


CHAPTER  XVII 


The  Bill  of  Exceptions 


Sec. 

1.  What  is  a  bill  of  exceptions. 

2.  When    a    bill    of    exceptions    un- 

necessary for  review. 

3.  Warning    of    the    consequences  of 

defective  bill. 

4.  Warning  of  the  Supreme  Court. 

5.  Form. 

6.  The  purpose  of  the  bill  of  exception. 

7.  What  the  bill  must  contain. 

8.  Must  point  out  errors  of  law. 

9.  Bill  must  present  substantial  con- 

troversy. 

10.  Evidence — How  preserved  and  ex- 

ceptions saved. 

11.  When  the  entire  evidence  necessary. 

12.  Exceptions  to  charge. 

13.  Documents — How  identified. 

(xxii) 


Sec. 

14.  Objecting  to  evidence  because  com- 

plaint  does    not    state    cause   of 
action. 

15.  Excqptions  to  charge  must  be  taken 

before  jury  retire. 

16.  Must  obtain  ruling  from  trial  court. 

17.  State  Court  practice  not  followed. 

18.  By  whom  signed  and  settled. 

19.  Time  for  signing  and  settling  a  bill 

of  exceptions. 

20.  One  or  several  bills. 

21.  Of  no  avail  unless  exceptions  taken 

at  the  trial. 

22.  Rule  in  New  York. 

23.  Adjournments     during      term      for 

settling  bill  of  exceptions. 

24.  Extension  of  time  by  consent. 


TABLE   OF   CONTENTS 


Sec. 

25.  Reservation  by  order  or  consent. 

26.  Trial  before  the  Court  in  Com- 

mon Law  Cases.  Special  findings. 
The  Statute. 

27.  Decisions  construing.     Request  for 

findings. 


Sec. 

28.  Effect  of  findings. 

29.  Must    be    preserved    by    bill     of 

exceptions. 

30.  When  bill  of  exceptions  unnecessary. 

31.  Inferences  in  absence  of  findings. 

32.  Agreed  statement  of  facts. 


CHAPTER  XVIII 
The  Record  in  Equity 


Sec. 

1.  Admonition  to  the  Bar  to  prepare 

their  records  carefully. 

2.  Taxing    costs    against    attorneys — 

when. 

3.  Record   on    appeal  in  equity — Ab- 

stracting    testimony.        Prascipe. 
Notice  and  Service. 

4.  Record  in  bankruptcy. 

5.  Mistaken  designation — effect  of. 

6.  Opinions  of  the  court  annexed  to 

record. 


Sec. 

7.  Opinions  of  the  courts  of  the  State 

of  New  York. 

8.  The  rule  generally. 

9.  Record — Who  must  print. 

10.  Translations. 

11.  Models,  diagrams,  and  exhibits    of 

material. 

12.  Original  papers.     Transcript  of  the 

record — The  statute. 

13.  The  rule. 

14.  Practice  in  Second  Circuit. 


CHAPTER  XIX 


Procedure  in  the  Appellate  Courts 


Sec. 

1.  Filing  the  Record  and  Docketing 

the  Cause.     Time. 

2.  Fees     and     deposits.     Deposit     on 

docketing. 

3.  Enlarging  time  to  file  record. 

4.  Time  for  return. 

5.  Appellee  or  defendant  in  error  may 

docket. 

6.  Appearance  of    counsel.      Must   be 

member  of  the  Bar  of  the  U.  S. 
Supreme  Court. 

7.  Appearance     by    appellee     in    ad- 

miralty. 

8.  Must  be  returned  not  later  than  the 

next  term. 

9.  Rule  directory  only. 


Sec. 
10. 


Settling  the  Record.     Statement 

of  errors  to  be  filed  after  docketing 

cause. 
Printing  the  Record.      Clerk   to 

demand  estimated  cost. 
Practice  in  Second  Circuit. 
When  printed  copies  supplied. 
Cost  for  preparing  record. 
Filing  printed  records  used  in  court 

below. 
Printed   record   used   in   the   State 

Court  may  be  refiled  in  the  U.  S. 

Supreme  Court. 
Cost  of  printing  to  be  taxed  against 

losing  party. 
18.  Death  of  a  party: 

(xxiii) 


11. 

12. 
13. 
14. 
15. 

16. 


17 


TABLE   OF   CONTENTS 


Sec.  Sec. 

(a)  Pending  appeal.  45. 

(b)  When  substitution  will  not  be 
permitted.  46. 

(c)  Before  appeal  taken.  47. 

19.  Certiorari  for  diminution  of  record.       48. 

20.  Proceedings     after     Docketing      49. 

Cause.  Printed  records  and  50. 
briefs.  Form  and  size — Supreme  51. 
Court — Circuit  Court  of  Appeals.        52. 

21.  Time  for  filing  briefs. 

22.  Briefs — Number  of  copies. 

23.  Briefs — The  contents.     Subject   in- 

dex and  alphabetical  list  of  cases. 

24.  Specifying  pages  of  record  in  brief. 
23.  Citation  of  doubtful  authorities. 

26.  Where    no    questions    of    law    are 

presented  in  Supreme  Court. 

27.  Specification  of  errors  in  brief. 

28.  Briefs    stricken    for    scandal    and 

impertinence. 

29.  Dismissal  for  failure  to  file. 

30.  Printed  arguments — Briefs. 

31.  Must  be  served. 

32.  Motions  in  Supreme  Court: 

(a)  In  writing. 

(b)  Motions  will  be  heard  only  on 
Monday. 

(c)  Time  for  argument. 

(d)  Notice  in  admiralty  appeals. 

33.  Motions  in  Circuit  Court  of  Appeals. 

34.  Motions  to  dismiss  or  affirm.     Gen- 

eral practice  in  Supreme  Court.  58. 

35.  When  appeal  taken  for  delay. 

36.  Must  be  made  on  printed  briefs.  59. 

37.  Notice  necessary. 

38.  Before  record  printed.  60. 

39.  Foreclosed  by  prior  decisions.  61. 

40.  Presumption        against        granting       62. 

motion. 

41.  Lack  of  jurisdiction  apparent.  63. 

42.  Time  for  filing  record — Motion  to 

dismiss.  64. 

43.  Placing  a  cause  on  summary  docket. 

44.  Dismissal    by    consent   or    by    ap-       65. 

pellant. 
(xxiv) 


53. 
54. 
55. 

56. 


57. 


Precedence.     Advancing   causes   on 

motion. 
Advancing  habeas  corpus  case. 
Use  of  law  library. 
Hearing  of  the  cause. 
Consolidation  of  actions  for  hearing. 
Passing  and  reinstating  cause. 
Oral  arguments. 
Effect  of  failure  to  appear  or  file  brief : 

(a)  Of  plaintiff  in  error  or  appel- 
lant. 

(b)  Of    defendant    in    error      or 
appellee. 

(c)  Of  either  party. 

(d)  At  second  term. 
Rehearing.     Time  for  petition. 
Effect  of  order  staying  mandate. 

In    criminal    cases — Rehearing     by 

Government. 
Interest: 

(a)  On  affirmance. 

(b)  In  equity. 

(c)  In  admiralty. 
Costs: 

(a)  On  dismissal. 

(b)  On  affirmance. 

(c)  On  reversal. 

(d)  U.  S.  a  party. 

(e)  Inserted  in  mandate. 

(f)  Applied   to   §§  238-241,   Fed. 
Jud.  Code. 

Damages  for  delay  on  affirmance  in 

error. 
Opinions  and  mandates.     Opinions 

of  the  court. 
When  mandates  issue. 
Recalling  mandate. 
Power  of  court  to  amend  its  own 

judgments. 
Bill  of  review  for  errors  of  law  not 

entertained. 
General  provisions — Attorneys    and 

counsellors. 
Process. 


TABLE  OF  CASES 


TABLE  OF  CASES 


PART  I 
[the  figures  refer  to  pages  of  this  book] 


Aaron  v.  United  States,  202. 

Abeel  v.  Culberson,  103. 

Accident  Ins.  Co.  v.  Crandall,  46. 

Acker,  Re,  200. 

Adams  v.  Russell,  141. 

Adams  County  v.  Burlington,  150,  233. 

Adams  Express  Co.  v.  Iowa,  162. 

Addington  v.  Adams,  273. 

^Etna  Indemnity  Co.  v.  J.   R.   Crowe 

Alining  Co.,  218. 
^Etna  Insurance  Co.  v.  Moore,  275. 

v.  Ward,  42. 
Agnew  v.  United  States,  49. 
Alabama  &  N.  O.  Transp.  Co.  v.  Doyle, 

77. 
Allix  v.  United  States,  52,  242. 
Alsop  v.  Conway,  33,  219. 
Altenberg  v.  Grant,  256. 
Alton  Water  Co.  v.  Brown,  61. 
Alverson  v.  Oregon  R.  R.  Co.  &  Nav. 

Co.,  49. 
American  Construction  Co.  v.  Jackson- 
ville R.  R.  Co.,  125,  128,  129,  130. 
American  Express  Co.  v.  Iowa,  148. 

v.  Mullin,  161. 
American  School  v.  McAnnulty,  127. 
American  S.  S.  Co.  v.  Twin  City  S.  S. 

Co.,  102. 
American  Sugar  Refining  Co.  v.  Louis- 
iana, 70,  152. 
v.  New  Orleans,  67,  68,  112. 
v.  United  States,  219. 
Amis  v.  Smith,  24,  36. 
Anargyros  v.  Anargyros  &  Co.,  201 
Andrews  v.  National  Foundry  &  Pipe 
Works,  21. 
v.  United  States,  219. 
Anglo-American  Land  M.  &  A.  Co.  v. 

Lombard,  246. 
Ansbro  v.  United  States,  65,  217. 
Apapas  v.  United  States,  65,  262. 
Arbuckel  v.  Blackburn,  69,  110,  149. 
Arizona   &    New   Mexico    Ry.    Co.    v. 

Clark,  241. 


Arkansas  v.  Kansas  &  T.  Coal  Co.,  142. 

v.  Schlirenholz,  65. 
Arken  v.  Smith,  33. 
Arnold  v.  Harrigan,  215. 
Arrowsmith  v.  Harmoning,  144. 
Aspen  Mining  Co.  v.  Billings,  209,  226, 

227,  228. 
Atchinson  T.  &  S.  P.  R.  Co.  v.  Phipps,  47. 

v.  Robinson,  141. 

v.  Sowers,  144,  161. 
Atherton  v.  Fowler,  140. 
Atlanta  City  Ry.  Co.,  Re,  25. 
Atlantic  Coast  Line  R.  Co.  v.  Goldsboro, 
159. 

v.  Prentiss,  104. 

v.  Thompson,  16. 
Attorney-General  State  of  Michigan  v. 

Lowry,  148. 
Augusta  Grocery  Co.  v.  Southern  Moline 

Plow  Co.,  93. 
Aurora  v.  West,  237. 
Automatic   Weighing   Machine   Co.    v. 

Pneumatic  Scale  Corporation,   26. 
Ayers  v.  Watson,  49. 
Ayres  v.  Polsdorfer,  70,  112. 


B 


Babbitt  v.  Dutcher,  91,  93. 
Bacon  v.  Hart,  223. 

v.  Rutland  Ry.  Co.,  77. 
v.  Texas,  159. 
Bagley  v.  General  Fire  Ext.  Co.,  68. 
Baker  v.  Grice,  191. 
Ball  v.  United  States,  195. 
Ball  Fastener  Co.  v.  Kreutzer,  232. 
Balson  Cooper  Co.  v.  Pedin,  241. 
Baltimore  &  Pacific  R.  R.  Co.  v.  Sixth 

Presb.  Church,  237. 
Baltimore   &    Potomac   R.    R.    Co.    v. 

Trustees,  231,  232. 
Bank  of  Commerce  v.  Tennessee,  251. 
Bank  v.  Conly  Bros.  Const.  Co.,  36. 
Bank  v.  Hawkins,  17. 
Bank  of  Louisburg  v.  Sheffey,  21,  23. 


(xxv) 


TABLE   OF   CASES 


Barber  v.  Coit,  44. 

Bardes  v.  Howarden  Bank,  93. 

Barnes  v.  Pampel,  86. 

Barney  v.  New  York,  160. 

Bartlett  v.  Lockwood,  151. 

Barton  Lumber  &  Brick  Co.  v.  Prewitt, 

89. 
Basket  v.  Hassell,  34. 
Bassett  v.  United  States,  282. 
Bates  v.  Dresser,  27. 
Baxter  v.  Bevill  Phillips  Co.,   20,  23, 

208,  209,  215. 
Bayard  v.  Lombard,  33,  140. 
Beach  v.  United  States,  16S,  169. 
Beardsley  v.  Arkansas  &  L.  R.  Co.,  33, 

34,  35,  220. 
Beaver  v.  Taylor,  52,  217, 242. 
Beavers  v.  Henkel,  192. 
Behm  Meyer  &  Co.  v.  Campbell,  16. 
Belden  v.  Chase,  162. 
Bell  v.  Mobile  &  O.  R.  Co.,  241. 
Bemer  v.  Hayes,  29. 
Benedetto  v.  Reno  Collar  Co.,  43. 
Benedict  v.  People,  158. 
Benites  v.  Hampton,  268. 
Bennett  v.  Butterworth,  237. 
Benson  v.  Henkel,  192. 
Berea  College  v.  Kentucky,  150. 
Bergeman  v.  Backer,  139, 154. 
Berliner  Gramophone  Co.  v.  Seaman,  222 
Bernard  v.  Lea,  214,  215,  216,  217,  219, 

228 
Bessette  v.  W.  B.  Conkey  Co.,  18,  19, 

198,  201,  203,  204,  205. 
Bidwell  v.  Douglas  Trading  Co.,  48. 
Big  Brushy  Coal  Co.  v.  Williams,  48. 
Bigelow  v.  Old  Dominion  Copper  Co.,  12. 
Bigler  v.  Wallace,  219,  220,  223. 
Blackburn    v.    Portland    Gold    Mining 

Co.,  68,  164. 
Blaffer  v.  New  Orleans  Water  Supply 

Co.,  209. 
Blake,  Re,  119. 
Blair  v.  Miller,  256. 
Blank  v.  Aronson,  26. 
Blanton  v.  United  States,  49. 
Bliss  v.  Reed,  227. 
Blitz  v.  United  States,  43. 
Block  v.  Darling,  242. 
Blossom  v.  Milwaukee,  etc.,  R.  R.  Co., 

35. 
Blount  v.  Socidte"  Anonyme  du    Filtre 

Chamberland  Systeme  Pasteur,  103. 
Blum,  Re,  87,  91,  93 
Blythe  v.  Hinckley,  61. 
Board  of  Commissioners  v.  Sherwood, 
50. 

(xxvi) 


Board   of   Flour   Inspectors   &   Co.   v. 

Glover,  29. 
Boatmen's  Bank  v.  Trower  Bros.  Co., 

56,  241. 
Bogart  v.  Southern  Pacific  Co.,  63. 
Bogk  v.  Gassert,  216,  217. 
Bois6  Artesian  H.  &  C.  Water  Co.  v. 

Boise  City,  70,  104,  109. 
Bondurant  v.  Watson,  213. 
Bonin  v.  Gulf  Co.,  149. 
Boogher  v.  Insurance  Co.,  55. 
Boren  v.  United  States,  49. 
Borgmeyer  v.  Idler,  110. 
Boston   and   M.    Consolidated    Mining 

Copper  and  S.  Mining  Co.  v.  Montana 

Ore  Purchasing  Co.,  69. 
Boston  Railway  Co.  v.  Bemis  Co.,  227. 
Bostwick  v.  Brinkerhoff,  20,  137. 
Boswell  v.  Otis,  8. 
Bothwell  v.  Fitzgerald,  86,  89,  90,  101, 

103. 
Botis  v.  Davies,  195. 
Botsford  v.  United  States,  54. 
Boyce  v.  Stewart-Warner  Speedometer 

Co.,  102. 
Boyd  v.  Glucklich,  200. 

v.  United  States,  202. 
Bradford  v.  Southern  R.  Co.,  39. 
Bradley,  Re,  30,  31. 
Brady  v.  Bernard  &  Kittmyer,  87. 
Bram  v.  United  States,  237. 
Brandies  v.  Cochrane,  212. 
Brewster  v.  Wakefield,  34. 
Breyer  Printing  Co.,  Re,  84,  85,  86,  90. 
Bridwell  v.  Douglas,  241. 
Briggs  v.  Chicago  &  N.  W.  Ry.  Co.,  47. 
Brigham    City   v.   Toltec    Ranch    Co., 

33. 
Brimmer  v.  Redmond,  23. 
British  Queen  Mining  Co.  v.  Baker  Sil- 
ver Mining  Co.,  250. 
Brockett  v.  Brockett,  219. 
Brolon  v.  United  States,  71. 
Bronson  v.  R.  R.  Co.,  137. 

v.  Schulten,  16,  242,  282. 
Brooks  v.  Norris,  82._ 
Brougham  v.  Oceanic  Navigation  Co., 

6,  7,  11. 
Broun,  Re,  280. 

v.  Alton  Water  Co.,  114,  228,  229. 
v.  Detroit  Trust  Co.,  18. 
v.  Fletcher,  23,  126,  161. 
v.  McConnell,  219,  222. 
v.  Walker,  53. 
Browning  v.  Boswell,  221,  222,  223. 
Bryant  Co.  v.  New  York  Steamfitting 

Co.,  63,  64. 


TABLE   OF   CASES 


Buck  Stove  Co.  v.  Federation  of  Labor, 
29. 

Buckeye  Powder  Co.  v.  Dupont  Powder 
Co.,  217. 

Bucklein  v.  United  States,  19,  205. 

Buel  v.  Farmers'  Loan  &  Trust  Co.,    33. 

Buell  v.  Van  Ness,  137. 

Bullen  v.  Wisconsin,  144. 

Bur,  Re,  30,  31. 

Burgel  v.  Robinson,  277. 

Burke,  Re,  188. 

Burlington  C.  R.  &  N.  R.  Co.  v.  Sim- 
mons, 21. 

Burnet  v.  Desmornes,  61. 

Burnham  v.  N.  Chicago  St.  R.  R.  Co., 
234. 

Burns,  Re,  4. 

v.  Rosenstein,  26. 

Burr  v.  Des  Moines  N.  &  R.  Co.,  168, 
169. 

Burton  v.  United  States,  6,  46,  71. 
V.  West  Jersey  Ferry  Co.,  216. 

Busch  v.  Stromberg  Telephone  Co.,  55. 

Bush  v.  Kentucky,  154. 

Bushnell  v.  Crooke  Mining  &  Smelting 
Co.,  277. 

Butterworth  v.  United  States,  119. 


California  Consol.  Min.  Co.  v.  Manley, 
20. 

California  ex  rel.  Hastings  v.  Hastings 
and  Jackson,  163. 

California  National  Bank  v.  Kennedy, 
164. 
v.  Statler,  24. 

California  Paving  Co.  v.  Molitor,  197. 

California  Powder  Works  v.  Davis,  145, 
147. 

Callaghan  v.  Myers,  28. 

Cameron  v.  United  States,  128. 

Capital  City  Dairy  Co.  v.  Ohio,  141. 

Capital  Traction  Co.  v.  Hof,  50,  51. 

Carondelet  Canal  &  Nav.  Co.  v.  Louis- 
iana, 148. 

Carpenter  v.  Strange,  161. 

Carter  v.  Roberts,  1 14. 

Carver  v.  United  States,  168. 

Cary  Mfg.  Co.  v.  Acme  Flexible  Clasp 
Co.,  111. 

Casey,  Re,  6,  9. 

Camden  v.  Stuart,  28. 

Canadian  North  Ry.  Co.  v.  Senske,  48. 

Cantrell  v.  Wallick,  26. 

Capitol  National  Bank  v.  First  National 
Bank,  164. 


Capitol  Traction  Co.  v.  Hof,  50,  51. 
Cardona  v.  Qumones,  208. 
Carey  v.  Donohue,  90. 

v.  Houston  &  Texas  Central  Rail- 
way Co.,  63,  66. 
Carin  v.  Insular  Government,  16. 
Carlson  v.  Washington,  151. 
Carolina  Glass  Co.  v.  Carolina,  67. 
Carpenter  v.  Williams,  163. 

v.  Winn,  130. 
Carter  v.  Ruddy,  42. 

v.  Texas,  161. 
Carver  v.  Jackson,  52. 
Castell  v.  Faber,  280. 
Castle  v.  Bullard,  52. 
Catholic  Missions  v.  Missoula  County, 

149. 
Cedar  Rapids  Gas  Light  Co.  v.  Cedar 

Rapids,  137,  151. 
Central  Improvement  Co.  v.  Cambria 

Steel  Co.,  25, 26, 27, 218. 
Central  Land  Co.  v.  Laidley,  155,  159. 
Central  National  Bank  v.  Stevens,  103. 
Central  R.  &  B.  K.  Co.  v.  Farmers' 

Loan  &  Trust  Co.,  22. 
Central  Trust  Co.  v.  Chicago  R.  I.  & 
P.  Ry.  Co.,  22,  34,  36. 
v.  Continental  Trust  Co.,  222. 
v.  Grant  Locomotive  Works,  22. 
v.  United  States  Heating  Co.,  21. 
v.  Western  N.  C.  Co.,  103. 
Central  Vermont  R.  Co.  v.  White,  215. 
Chadwick  v.  United  States,  53. 
Chamberlain     Transportation     Co.     v. 

South  Pier  Coal  Co.,  212. 
Chambers  v.  Baltimore  &  O.  R.  Co.,  144. 
Chapman  v.  Barney,  45. 
v.  Bowen,  250. 
v.  Goodnow,  148. 
Chappelle  v.  United  States,  64,  65,  67, 

72,  262. 
Chase  v.  Wetzlar,  61. 
Chateaugay  Ore  &  Iron  Co.,  Re,  237, 

242,  244. 
Chemical   National  Bank  v.   Hartford 

Deposit  Co.,  164. 
Chesapeake  &  O.  R.  Co.  v.  McCabe, 
137. 
v.  Proffett,  53. 
Chesborough  v.  Woodworth,  238. 
Chetwood,  Re,  31,  82,  103,   125,   128, 

129,  189. 
Chicago  Burlington  &  Quincy  Ry.  Co. 
v.  Chicago,  16,  143,  148,  152,  154, 
155,  156,  158. 
v.  Drainage  Commission,  152. 
v.  Nebraska,  148. 

(xxvii) 


TABLE   OF   CASES 


Chicago  Burlington  Quincy  Ry.  Co. — 

Continued 

v.  People,  147. 

v.  R.  R.  Commission  of  Wisconsin, 
144. 

v.  Williams,  115. 
Chicago  Directory  Co.  v.  United  States 

Directory  Co.,  204. 
Chicago  Dollar  Directory  Co.  v.  Chicago 

Directory,  220. 
Chicago    Great    Western    Ry.    Co.    v. 
Egan,  207. 

v.  Le  Valley,  46,  212. 

v.  Roddy,  48. 
Chicago  Junction  R.  R.  Co.  v.  King,  44. 
Chicago  Life  Ins.  Co.  v.  Needles,  153. 
Chicago  Milwaukee  &  St.  Paul  R.  Co. 

v.  Clark,  56. 
Chin  Low  v.  United  States,  192,  193. 
Chottiner,  Re,  88. 
Chow  Loy  v.  United  States,  256. 
Christianson  v.  Kings  County,  155,  156. 
Christenscn   Engineering   Co.,    Re,    17, 

19,  201,  205. 
Chung  Kin  Tow,  Re,  190. 
Churchfield  El  Co.  v.  Titus,  214. 
Cincinnati  H.  &  D.  R.  Co.  v.  Interstate 
Commerce  Commission,  28. 

v.  Thiebaud,  72. 
Cincinnati  Packet  Co.  v.   Green  Bay, 

143,  144,  152. 
Cincinnati  S.  &  L.  Co.  v.  Grand  Rapids 

S.  D.  Co.,  209. 
Cisco  v.  Looper,  216. 
Citizens'  Sav.  &  Trust  Co.  v.  Illinois 

Central  R.  R.  Co.,  62. 
City  v.  Topeka  Ry.  Co.,  160. 
City  Bank  of  Ft.  Worth  v.  Hunter,  119. 
City  National  Bank  v.  Hunter,  34. 
City  of  Naples,  Re,  94. 
Claasen,  Re,  219,  225,  226. 

v.  United  States,  54. 
Clark  v.  Roller,  25. 
Clarke  v.  Hamilton,  271. 

v.  McDade,  138,  147. 
Cleveland  &  P.  R.  Co.  v.  Cleveland,  214. 
Clifton  v.  Sheldon,  34. 
Clinton  v.  Missouri  Pac.  R.  R.  Co.,  237. 
Clune  v.  United  States,  43,  237. 
Clyatt  v.  United  States,  44,  46,  240. 
Cockcroft,  Re,  33,  140. 
Coder  v.  Arts,  84,  86,  90. 
Coe  v.  Armour  Fertilizer  Works,  138. 
Coffin  v.  Ogden,  26. 

v.  United  States,  44. 
Cohen  v.  United  States,  49,  271. 

v.  Virginia,  3,  6,  12,  268. 

(xxviii) 


Collier  v.  United  States,  42. 

Collin  County  National  Bank  v.  Hughes, 

45. 
Collins  v.  Board  of  Control,  67. 

v.  United  States,  268. 
Colorado,  etc.,  M.  Co.  v.  Turck,  110. 
Columbia  Water  Power  Co.  v.  Columbia 

Street  Ry.  Co.,  143,   145,   147,  148, 

158,  159. 
Columbus  Chain  Co.  v.  Standard  Chain 

Co.,  222. 
Columbus  Watch  Co.  v.  Robins,  116. 
Colvin  v.  City  of  Jacksonville,  65,  66. 
Comingor-Sinsheiner  et  al.  v.  Simmon- 
ton,  Re,  94. 
Commissioners  v.  Lucas,  138. 
Comstock  v.  Crawford,  10. 
Condran  v.  Chicago,  Milwuakee  &  St. 

Paul  Ry.  Co.,  48. 
Conley  v.  Mathieson  Alkali  Works,  152, 

157. 
Connecticut   Mutual   Life   Ins.    Co.    v. 

Spratley,  152,  157. 
Connell   Bros.    Co.   v.    Diederichsen  & 

Co.,  215. 
Conners  v.  United  States,  42. 
Connor  et  al.  v.  United  States,  246. 
Consolidated  Turnpike  Co.  v.  Norfolk 

&  O.  V.  R.  Co.,  142,  146,  147,  150. 
Continental  National  Bank  v.  Buford, 

5. 
Continental  Public  Works  v.  Stein,  217. 
Continuous  Glass  Co.  v.  Schwertz  Glass 

Co.,  28. 
Cooley  v.  Morgan,  190. 
Cooper,  Re,  118. 
v.  Newell,  158. 
v.  Reynolds,  8. 
Copper  River  Ry.  Co.  v.  Reeder,  238, 

240. 
Corcoran  v.  Kostrometinoff,  220. 
Cornel  v.  Green,  69. 
Cornett  v.  Williams,  11. 
Cornue  v.  Ingersoll,  227. 
Cortes,  Re,  194,  195. 
Cosmopolitan  Club  v.  Virginia,  155. 
Cotter  v.  Alabama  R.  R.  Co.,  214. 
Counselman  v.  Hitchcock,  202. 
Courtney  v.  Collins,  93. 

v.  Fidelity  Trust  Co.,  90. 
v.  Pradt,  61,  65. 
Covington  v.  First  National  Bank,  20. 
Cox  v.  United  States,  34,  140. 
Coxe    v.    Peck-Williamson    Heating    & 

Ventilating  Co.,  247. 
Craighead  v.  Wilson,  24. 
Cramp  &  Sons  v.  Int.  C.  M.  T.  Co.,  130. 


TABLE   OF   CASES 


Crane,  Re,  4,  239. 

v.  New  York,  154. 

Crapo  v.  Kelly,  161. 

Crawford  v.  McCarthy,  61,  62. 
v.  United  States,  44. 

Credit  Co.  v.  Arkansas  Ry.  Co.,  226. 

Credits    Commutation    Co.    v.    United 
States,  32,  36. 

Creekmore  v.  United  States,  202,  205. 

Crescent  City  L.  S.  L.  H.  Co.  v.  Butchers' 
Union,  161. 

Creswill  v.  Grand  Lodge  K.  P.,  151. 

Crico  v.  Wilmore,  23. 

Crocker  v.  Kundsen,  24. 

Cromwell  v.  Bank  of  Pittsburgh,  282. 

Cross  Lake  Shooting  &  Fishing  Club  v. 
Louisiana,  159. 

Crowe  v.  Harmon,  240. 
v.  Trickey,  240. 

Crumpton  v.  United  States,  42,  49,  53. 

Cubbins    v.    Mississippi    River    Com- 
mission, 162. 

Cunningham  v.  German  Ins.  Bank,  234. 

Cushing  v.  Laird,  25. 

Cutting,  Re,  33. 

Cuyler  v.  A.  &  N.  C.  R.  Co.,  198. 


D 


Dandridge  &  Pugh,  Re,  211. 

Daniels  v.  Portland  G.  M.  Co.  et  al.,  218. 

Darnell  v.  Illinois  Central  R.  R.  Co., 

62,  209. 

v.  Indiana,  37. 
Dartmouth  College  Case,  160. 
Davenport  v.  Fletcher,  219,  220. 
Davidson  v.  Laurel,  212. 

v.  New  Orleans,  155. 
Davidson  Bros.  Marble  Co.  v.  Gibson, 

63. 
Davis,  Re,  199,  200. 

v.  Corbin,  22. 

v.  Mercantile  Trust  Co.,  33. 

v.  Schwartz,  27. 
Davis  &  Rankin  Building  &  Mfg.  Co. 

v.  Barber,  65. 
Davison,  Re,  200. 
Dayville  Woolen  Co.,  Re,  88. 
Dean  v.  Nelson,  21,  156. 
De  Beam  v.  Safe  Deposit  &  Trust  Co., 

71. 
Debs,  Re,  128,  197,  199,  200. 
Decatur  v.  Paulding,  5. 
Defiance  Water  Co.  v.  Defiance,  5. 
Degge  v.  Hitchcock,  127,  129. 
De  Groot  v.  United  States,  168. 
Delaware  v.  Albany,  117. 


Delaware,  Lackawanna  &  Western  Ry. 
Co.  v.  Converse,  48. 
v.  Yurkonis,  110. 

Delaware  R.  R.  Tax,  161. 

Delk  v.  St.  Louis  R.  R.  Co.,  129. 

Deming  v.  Carlisle  Packing  Co.,  150. 

Demmick  v.  United  States,  53. 

Den.  v.  The  Hoboken  Land  &  Improve- 
ment Co.,  158. 

Deneale  v.  Archer,  213,  228. 

Denny  v.  Bennett,  22. 

Denver  v.  Home  Savings  Bank,  237, 245. 
v.  New  York  Trust  Co.,  126,  127. 

Dermont  v.  Hayes,  20. 

Deslinois    v.    La    Campagnie    Generale 
Transatlantique,  22. 

Desmare  v.  United  States,  168. 

Des  Moines  v.  Des  Moines  W.  Co.,  24. 

Des  Moines  Car  Co.  v.  Des  Moines,  77. 

Des   Moines   Navigation   Co.    v.    Iowa 
Homestead  Co.,  10. 

Detroit  v.  Detroit  Citizens  Street  R.  Co., 
153,  159,  160. 
v.  Guaranty  Company,  35. 

Detroit  &  M.  R.  Co.  v.  Michigan  R.  R. 
Commission,  22,  137. 

Dial  v.  Reynolds,  103. 

Dialogue,  Re,  199. 

Diamond  Rubber  Co.  v.   Consolidated 
Rubber  Co.,  130. 

Dietz  v.  Lymer,  56. 

Dietzsch  v.  Huidekoper,  103. 

Diggs  and  Keith  v.  Wolcott,  103. 
v.  United  States,  53. 

Dill  v.  Ebbey,  143. 

Dodge  v.  Knowles,  221,  222. 

Dolan  v.  Jennings,  34. 

Donallan  v.  Tannage  Patent  Co.,  273. 

Doniphan  v.  Lehman,  198. 

Donnelly,  Re,  209. 

Dooley  v.  Pease,  245. 

Doss  v.  Tyack  et  al.,  282. 

Douglas  v.  Kentucky,  160. 

Dowagiac  Mfg.  Co.,  v.  Brennan,  252. 

Dowd  v.  Russell,  141. 

Dowell  v.  Applegate,  161. 

Dower  v.  Richards,  4,  16,  25,  151. 

Downes  v.  Bidwell,  5. 

Drake  v.  State,  277. 

Draper  v.  Davis,  212. 

Drew  v.  Thaw,  190. 

Duluth  St.  Ry.  Co.  v.  Spears,  52,  242. 

Dun  v.  Lumbermen's  Credit  Assn.,  26. 

Duncan  v.  The  Francis  Wright,  239. 

Dundee  Mortgage  Co.  v.  Hughes,  56. 

Dunn  v.  Mayo  Mills,  45. 

Dunsmuir  v.  Scott,  245. 

(xxix) 


TABLE    OF   CASES 


Dupasseur  v.  Rochcreau,  161,  1G2. 
Durham  v.  Seymour,  113. 


E 


East  Coast  Cedar  Co.  v.  Peoples  Bank, 

23. 
East  Tennessee,  Virginia,  and  Georgia 
Railroad  Co.  v.  Southern  Telegraph 
Co.,  29. 
Eastern  Extension,  Australasia  &  China 
Telegraph  Co.  Ltd.  v.  United  States, 
66. 
Easton,  Re,  118. 

Edmonson  v.  Bloomshire,  228,  255. 
Egan  v.  Hart,  151,  233. 
Eilenbecker  v.   District  Court  of  Ply- 
mouth County,  197. 
Eldorado  Coal  &  Alining  Co.  v.  Mariotti, 

231,  232,  234,  237. 
Electric  Co.  v.  ^Etna  Life  Ins.  Co.,  87. 
Elkus,  Re,  116. 
Elliott  v.  Piersol.  11. 
Ellis    v.     Interstate    Commerce    Com- 
mission, 22,  110. 
Elmore  Cotton  Mills,  Re,  94. 
El  Paso  &  S.  R.  Co.  v.  Eichel,  141. 
Elwell  v.  Fosdick,  33. 
Embry  v.  Palmer,  162. 
Emery  v.  Central  T.  &  S.  D.  Co.,  101. 
Empire  State   Mining  Co.    v.   Hanley, 

149. 
Empire  Trust  Co.  v.  Brooks,  22. 
Engel  v.  O'Malley,  37. 
Ensign  v.  Pennsylvania,  142. 
Equitable  Life  Ins.  Co.  v.  Brown,  15, 

71,  155. 
Equitable  Trust  Co.,  Re,  82,  227. 
Erie  R.  R.  Co.  v.  Erie  Transp.  Co.,  127. 
v.  Purdy,  142,  143,  144. 
v.  Weber  &  Kraft,  48. 
v.  Williams,  37. 
v.  Winter,  53. 
Estes  v.  Trabue,  Davis  &  Co.,  34,  213. 
Eustis  v.  Bolles,  147,  150. 
Evans  v.  Bank,  256. 
v.  Stettinson,  231. 
v.  United  States,  54. 
Everett  C.  &  B.  v.  Alpha  P.  C.  Co.,  34. 
Excelsior  Wooden  Pipe  Co.  v.  Pacific 
Bridge  Co.,  65,  66. 

F 

Factors  &  Traders  Ins.   Co.   v.   Mary 

Murphy,  165. 
Falkner  v.  Hutchins,  35. 


Farmers'  &  Mfg.  Bank  of  Rich  Hill,  Re, 
87. 

v.  Minnesota,  38. 
Farmers'  Loan  &  Trust  Co.,  Re,  21,  36. 

v.  Cape  Fear  &  Yadlin  Valley  Ry. 
Co.,  36. 

v.  Northern  Pacific  Ry.  Co.,  36,  212. 
Farmers  Oil  &  Guam  Co.  v.  Duckworth 

Co.  5. 
Farrugia  v.  Philadelphia  &  Reading  Ry. 

Co.,  61. 
Fassctt,  Re,  194,  195. 
Fauntleroy  v.  Lum,  7,  61,  161. 
Fayerweather  v.  Ritch,  70,  154,  158. 
Feibelman  v.  Packard,  34. 
Felton  v.  Spiro,  43,  57. 
Ferguson  v.  Omaha  &  S.  W.  R.  Co.,  61. 
Ferris  v.  Frohman,  141. 
Fiberg  v.  Warren,  282. 
Field   v.   Barber  Asphalt   Paving   Co., 

68,  69,  70. 
Fields  v.  United  States,  129. 
Files  v.  Brown,  16. 
Firestone  Tire  &  Rubber  Co.  v.  Seber- 

ling,  247,  249. 
First  National  Bank,  Re,  7. 

v.  Albright,  103. 

v.  Chicago  Title  &  Trust  Co.,  87, 93. 

v.  Cole,  88. 

v.  Klug,  64. 

v.  Library  Bureau,  209. 
Fishburn  v.  Chicago  M.  &  St.  P.  R.  Co., 

242. 
Fisher  v.  Baker,  15,  23. 

v.  Cockrell,  232. 

v.  New  Orleans,  159. 

v.  Perkins,  139. 
Fisher  Hydraulic  Stone  &  Machine  Co. 

v.  Warner,  272. 
Fisher   Mach.    Co.    v.    Dougherty,   49, 

241. 
Fiske,  Re,  11. 
Fitch  v.  Huff,  53.  _ 
Fitzpatrick  v.  United  States,  63. 
Fleitas  v.  Richardson,  242. 
Flickinger  v.  United  States,  54. 
Florentine  v.  Barton,  10. 
Florida  v.  Phosphate  Co.,  257. 
Florida  etc.  Ry.  v.  Bell,  110. 
Folk  v.  United  States,  102,  103. 
Foote  v.  Parsons  Non-Skid  Co.,  Ltd., 

101. 
Forbes   v.   State   Council   of   Virginia, 

146,  147. 
Fore  River  Shipbuilding  Co.  v.  Hagg,  61. 
Forgay  v.  Conray,  34. 
Forsyth  v.  Hammond,  125,  128,  129. 


(xxx) 


TABLE   OF   CASES 


Foster  v.  United  States,  50. 

Fountain  v.  Detroit  M.  T.  &  S.  L.  Ry., 

216. 
433  Cans  of  Frozen  Egg  Products  v. 

United  States,  94. 
Fowler  v.  Lamson,  145,  147. 
Francisco  v.  Chicago  &  A.  R.  Co.,  237. 
Frank  v.  Mangum,  24,  43,  188,  189,  190, 
191. 
v.  State,  153. 
Frankel,  Re,  18. 
Frankfort  v.  Deposit  Bank,  16. 
Frederich,  Re,  191. 
Freed  v.  Central  Trust  Co.  of  Illinois, 

17,  18,  86,  205. 
Freeman  v.  Howe,  200. 

v.  United  States,  212,  220,  228,  244, 
255,  257. 
French,  Re,  219,  220. 

v.  Hay,  103. 
French  Glenn  Live  Stock  Co.  v.  Springer, 

163. 
Friend,  Re,  84,  85. 

v.  Talcott,  126. 
Fruth  v.  Bennaso,  245. 
Fuller  v.  Lake  Erie  &  W.  R.  R.  Co.,  23. 

v.  United  States,  242. 
Furman  v.  Nichols,  153,  161. 


G 


Gaar  Scott  &  Co.  v.  Shannon,  147,  150. 

Gaines  v.  Rugg,  229. 

Galbraith   v.    Robson-Hdliard   Grocery 

Co.,  90. 
Galloway  v.  State  National  Bank,  165. 
Gamewell  Fire  Alarm  Tel.  Co.,  Re,  281. 
Garland,  Re,  31. 
Garrosi,  Re,  25. 
Gegiow  v.  Uhl,  43. 
Gelston  v.  Hoyt,  139. 
General  Electric  Co.  v.  Slemberger,  26. 
Geneva    Furniture    Co.    v.    Karpen    & 

Bros.,  63. 
Geo.  A.  Fuller  Co.  v.  McCloskey,  46. 
Georgia  v.  Jesup,  33,  140. 
Germain  v.  Mason,  34,  140. 
German  National  Bank  v.  Specker,  109. 
Ghost  v.  United  States,  237. 
Gibbons  v.  Goldsmith,  87. 

v.  Mahon,  160. 
Gibbs  v.  Diekma,  279. 
Gibson  v.  Luther,  55. 

v.  Mississippi,  154. 
Gila  Valley  G.  &  N.  R.  R.  v.  Hall,  45, 

243. 


Gilbert  v.  David,  5,  64. 

v.  Hopkins,  214,  256. 
Giles  v.  Little,  161. 
Gilfillan  v.  McKee,  34,  140. 
Gill,  Re,  87,  88,  93. 
Gladden  v.  Garbert,  219. 
Gladys  Bell  Oil  Co.  v.  McKay,  20,  25. 
Glaser,  Re,  118. 

Glaspell  v.  Northern  Pacific,  242. 
Godbe  v.  Tootle,  213. 
Goddard  v.  Ordway,  227. 
Goldman  v.  United  States,  46. 
Goldstein,  Re,  87,  91,  93. 
Gompers  v.  Buck  Stove  &  Range  Co., 
17,  19,  29,  200,  201,  202,  203,  205. 

v.  United  States,  128. 
Good  v.  Kane,  88. 
Good  Shot  v.  United  States,  126. 
Goodman,  Re,  212. 
Goodwin  v.  Fox,  223. 

v.  United  States,  234. 
Gordon  S.  &  M.  Co.,  Re,  88. 
Gormley  v.  Bunyan,  45. 
Gould  v.  United  States,  46,  225,  256. 
Graham  v.  Bayne,  236. 
Grand   Trunk   Western   R.   R.    Co.    v. 
Ives,  49,  216. 

v.  Lindsey,  148,  158. 

v.  South  Bend,  159. 
Grandison  v.  Robertson,  47. 
Grant  v.  Cananea,  157. 

v.  E.  &  W.  R.  R.  Co.,  22. 

v.  Insurance  Co.,  20,  137. 

v.  United  States,  17,  19,  205. 
Grant  Shoe  Co.  v.  Laird,  61,  63. 
Grape    Creek    Coal    Co.    v.    Farmers' 

Loan  &  Trust  Co.,  216. 
Great  Southern  Fire  Proof  Hotel  Co.  v. 

Jones,  5. 
Great  Western  Tele.  v.  Burnham,  137. 

v.  Purdy,  161. 
Green  v.  Buskirk,  139. 

v.  Chicago  B.  &  Q.  Ry.,  157. 

v.  Elbert,  256. 

v.  Fisk,  137. 

v.  Lynn,  209. 
Green  Bay,  etc.  v.  Patten  Paper  Co., 

143,  148,  152. 
Green  County  v.  Quinlan,  125. 
Greene  v.  Henkel,  192. 

v.  United  States,  54. 
Griggs  v.  Nadeau,  21. 
Grignon  v.  Astor,  6,  10. 
Grier  v.  Union  National  Bank,  35. 
Griesen  v.  Mutual  L.  I.  Co.,  101. 
Groat  v.  O'Hara,  42. 
I  Gross  v.  U.  S.  Mortgage  Co.,  233,  250. 

(xxxi) 


TABLE   OF   CASES 


Gsell  v.  Insular  Custom  Collector,  22. 
Guaranty  Trust  Co.  v.  North  Chicago 
St.  R.  R.  Co.  ct  al.,  103. 
v.  New  York,  45,  245. 
Guardian  Assn.  Co.  v.  Quintona,  242. 
Guion  v.  Liverpool,  London  &  Globe 

Ins.  Co.,  33. 
Gumbel  v.  Pitkin,  22,  213. 
Gunnison  Co.  v.  Rollins,  240. 
Gytl,  Re,  192,  274. 

H 

Ilaapi  v.  Brown,  17. 
Habcrman  Mfg.  Co.,  Re,  208. 
Haddock  v.  Haddock,  12,  61. 
Haffenberg  v.  Chicago  Title  &  Trust  Co., 

94. 
Haines  v.  Carpenter,  103. 
Haire  v.  Rice,  147. 

Halfpenny  v.  Miller,  20,  270,  272,  273. 
Hallowell  v.  United  States,  117. 
Hamblin  v.  Western  Land  Co.,  149. 
Hamburg     American     v.      Packerfarth 

Actien  Gesellschaft,  29. 
Hamilton    Brown    Shoe    Co.    v.    Wolf 

Bro.,  125,  129,  130. 
Hamilton  Coal  Co.  v.  Watts,  19. 
Hamilton  Gaslight~Co.  v.  Hamilton,^160. 
Hammond  v.  Johnston,  146. 
Hampton  v.  Rouse,  34. 
Hancock  National  Bank  v.  Farnham, 

161. 
Hanna  v.  Massachusetts,  240. 
Hanrick  v.  Patrick,  34. 
Hardee  v.  Wilson,  34,  140. 
Hardesty  v.  United  States,  225. 
Harding,  Re,  118,  119. 

v.  Illinois,  142,  143,  147. 
Harkarder  v.  Wadley,  23. 
Harper,  City  of,  v.  Daniels,  238. 
Harris,  Re,  116. 

v.  Balk,  161. 

v.  Hordeman,  8,  104. 
Harry    Bros.    Co.    v.    Yaryan    Naval 

Stores  Co.,  37. 
Hart-Parr  Co.  v.  Barkley,  87. 
Hartzell,  Re,  90. 
Harvey  v.  Tyler,  217. 

v.  United  States,  54. 
Haskins  v.  St.  Louis,  220. 
Hathaway  v.  First  National  Bank,  55. 
Havnor  v.  New  York,  136. 
Haws  v.  Victoria  Copper  Mining  Co.,  44. 
Hayden,  Re,  93. 
Hayes  v.  Fisher,  18. 

v.  Michigan  Central  R.  R.  Co.,  160. 

(xxxii) 


Head  v.  Hargrave,  237. 

Healy  v.  Sea  Gull  Specialty  Co.,  61. 

Heard  v.  United  States,  243. 

Hedderly  v.  United  States,  49. 

I  kirn  v.  McCall,  147. 

Heine  v.  Board  of  Levee  Commissioners, 

120. 
Henderson   Bridge   Co.    v.    Henderson, 

146,  160. 
Henry  v.  Henkel,  188,  190,  191,  192. 
Henry  Siegel  Co.,  Re,  88. 
Herbert  v.  Butler,  240. 
Herndon-Carter  Co.  v.  Norris,  66,  81. 
Hewitt  v.  Berlin  Machine  Works,  89,  90. 

v.  Filbert,  222. 
Hickman  v.  Fort  Scott,  281. 
Hickory  v.  United  States,  50. 
Higbee  v.  Chad  wick,  219. 
Hicjgins  v.  United  States,  53. 
Hill  v.  Chicago  &  E.  R.  Co.,  21,  255. 

v.  Harding,  33. 

v.  Western  Elect.  Co.,  37. 
Hills  v.  Hoover,  117. 
Hinckley  v.  Norton,  228. 
Hine  v.  Morse,  6. 
Historical  Pub.  Co.  v.  Jones  Bros.  Pub. 

Co.,  21,  45. 
Hocking    Valley    Ry.    Co.    v.    United 

States,  54. 
Hohorst,  Re,  119. 

v.  Hamburg- American    Pacific  Co. 
25. 
Hoke  v.  United  States,  42. 
Holden  v.  Circleville  L.  &  P.  Co.,  44. 
Holder  v.  Aultman  Miller  &  Co.,  70. 

v.  United  States,  43. 
Hollingsworth  v.  Barbour,  156. 
Home  for  Incurables  v.  New  York,  142, 

145,  146. 
Home  Telephone  Co.  v.  Los  Angeles, 

153,  154. 
Homer  v.  United  States,  6. 
Honey  v.  Chicago  B.  &  Q.  R.  R.  Co., 

244. 
Hooker  v.  Burr,  38. 
Hooker  v.  Los  Angeles,  142. 
Horn  v.  Mitchell,  23. 
Horner  v.  United  States,  70,  71,  72,  195. 
Hosier  v.  Ireland,  245. 
Houghton  v.  Burdon,  89,  90,  110. 
Houston  &  T.  C.  R.  Co.  v.  Texas,  148. 
Hovey  v.  Elliot,  8,  152,  157. 

v.  McDonald,  23,  100,  130. 
Howard  v.  De  Cordova,  158. 
Howe  Mach.  Co.  v.  Dayton,  82,  101. 
Hubbard  v.  Todd,  125. 

v.  Worchestcr  Art  Museum,  17. 


TABLE  OF  CASES 


Hudgins  v.  Kemp,  219. 
Hudson  v.  Guestier,  10. 

v.  Parker,  3,  225. 
Hugueley  Mfg.  Co.  v.  Galeton  Cotton 

Mills,  67,  68,  69,  70,  110,  113. 
Hulbert  v.  Chicago,  143,  145. 
Hultberg  v.  Anderson,  18,  208. 
Hume  v.  Bowie,  242. 
Humes  v.  United  States,  42,  43. 
Humphrey  v.  Baker,  229. 
Hunt  v.  Oliver,  33. 

v.  United  States,  111. 
Huntington  v.  Attrill,  157,  161. 

v.  Laidley,  5,  158. 

v.  Saunders,  113. 
Hurley  v.  Atchison  T.  &  S.  P.  R.  Co.,  89. 
Hurst  v.  Hollingsworth,  17. 
Hussey    v.     Richardson-Roberts     Dry 

Goods  Co.,  26. 
Hutchinson  Co.  v.  Loewy,  128. 
Huttig  v.  Sash  Co.,  86. 
Hyde  v.  Shine,  192. 

v.  Stone,  104. 


Illinois  Central  R.  R.  Co.  v.  Adams,  6, 
158. 
v.  McKendree,  161. 
v.  Mulberry  Hill  Coal  Co.,  144. 
v.  Nelson,  267. 
Illinois  ex  rel.  Gersch  v.  Chicago,  137. 
Illinois  Trust  &  Savings  Bank  v.  Kil- 

bourne,  222. 
Improvement  Co.  v.  Prari,  239. 
Incorporated    Town    of    Stonewall    v. 

Stone,  46. 
Indiana  Southern  R.  R.  Co.  v.  Liver- 
pool L.  &  G.  Ins.  Co.,  33,  140. 
Inglehart  v.  Stansbury,  34,  35. 
Insurance  Co.  v.  Mordecai,  221. 
Interior  Const.  &  Imp.  Co.  v.  Gibney, 

66. 
International   Harvester   Co.   v.    Ken- 
tucky, 157. 
v.  Missouri,  141. 
Interstate  Amusement  Co.   v.   Albert, 

151,  157,  159. 
Interstate    Commerce    Commission    v. 
Alabama  &  Midland  R.  Co.,  28. 
V.  Brimson,  197. 

V.  Illinois  Central  R.  R.  Co.,  28. 
v.  Northern  Pacific  R.  R.  Co.,  28. 
v.  Union  Pacific  Co.,  28,  29. 
Investment  Co.  v.  Chicago  Milwaukee 

&  E.  R.  Co.,  23,  35. 
Iron  Mountain  R.  Co.  v.  Memphis,  160. 


Ironton  v.  Harrison,  268. 
Irvine  v.  The  Hesper,  95. 
Itow  v.  United  States,  186. 


Jacobi  v.  Alabama,  143. 

Jacobs  v.  George,  221,  222. 

Japanese  Immigration  Case  v.  United 

States,  193. 
Jeffrey  Mfg.  Co.  v.  Blagg,  37. 
Jeske  v.  Cox,  20. 
Jim  Hong,  Re,  81,  188,  277. 
Johnson  v.  Gerald,  71. 

v.  Hoy,  190. 

v.  Meyers,  209. 

v.  Southern  Pacific  Co.,  128. 

v.  United  States,  231. 
Johnston  v.  Spencer,  88,  93. 
Jones  v.  Buckell,  239. 

v.  Grover  &  Baker  Sewing  Machine 
Co.,  243. 
Jones  National  Bank  v.  Yates,  148, 151, 

158. 
Joplin  Mercantile  Co.  v.  United  States, 

268. 
Jordan,  Re,  37. 
Jugiro,  Re,  188. 


K 


Kanawha  &  Mich.  R.  R.  Co.  v.  Kerse, 

44,  139. 
Kanouse  v.  Martin,  232. 
Kansas  City  &  Southern  Ry.   Co.  v. 

Albers  Comm.  Co.,  146,  149,  151. 
Kansas  City,  Mo.   v.   Sanitary  S.   F. 

Mch.  Co.,  102. 
Kansas   City   Western   R.   R.    Co.   v. 

Adow,  141. 
Kasle  v.  United  States,  46,  47. 
Kaukauna  v.  Green  Bay,  143,  153. 
Keeley  v.  Ophir  Hill  etc.  Co.,  55. 
Keith  v.  Alger,  280. 
Kelsey  v.  Tilt,  145,  152,  161. 
Kenaday  v.  Sinnott,  109. 
Kendall  v.  United  States,  8. 
Kendrick  v.  Roberts,  212. 
Kentucky  Coal  &  Lumber  Co.  v.  Howes, 

209. 
Kerr  v.  Clampett,  237. 
Kerwan  v.  Murphy,  109. 
Key,  Re,  35. 
Keyser  v.  Fair,  226. 
Keystone   Manganese   &   Iron   Co.   v. 

Martin,  24. 

(xxxiii) 


TABLE  OF  CASES 


Kidder  v.  Northwestern  Mutual  Ins. 
Co.,  33. 

Kilmer  Mfg.  Co.  v.  Griswold,  101. 

King  v.  McLean  Asylum,  33,  188. 
v.  Pomeroy,268. 
v.  Smith,  43. 

Kingman  &  Co.  v.  Western  Mfg.  Co., 
23,  209. 

Kings  County  Raisin  &  Fruit  Co.  v. 
United  States  Con.  Seeded  Raisin  Co., 
103. 

Kinney  v.  Plymouth  Rock  Squab 
Company,  39,  40. 

Kirk  v.  United  States,  204. 

Kirsner  v.  Taliafero,  86. 

Kitchin  v.  Randall,  222,  223. 

Klink  v.  Chicago  R.  I.  &  P.  R.  Co.,  217. 

Knapp  v.  Milwaukee  Trust  Co.,  89,  90. 

Knickerbocker  Life  Ins.  Co.  v.  Pendle- 
ton, 221. 

Knight  v.  Illinois  Central,  52. 

Knott  v.  St.  Louis  S.  W.  R.  R.  Co.,  30. 

Knox  v.  Exchange  Bank,  159. 

Kraijer  v.  Snare  &  Triest  Co.,  86. 

Krieger  v.  Shelby  R.  R.  Co.,  233. 

Kronberg,  Re,  33. 


Laas  v.  Scott,  26.       ' 

Lacy  v.  McGaffey,  26. 

Lake  Shore  Elect.  Co.  v.  Kurtz,  49. 

Lamar  v.  United  States,  6,  7,  17,  61, 

112,  126. 
Lambert  v.  Barrett,  20,  24. 
Lamon  et  al.  v.  Speer,  33. 
Lampasas  v.  Bell,  71. 
Lam  Pui,  Re,  192,  193,  194. 
Lancaster  v.  Collins,  42. 
Lane  v.  Lester,  42. 

v.  Wallace,  139. 
Lang  v.  Rigney,  43. 
Lange,  Re,  125. 

v.  Union  Pacific  Ry.  Co.,  45. 
Lapine  v.  Williams,  128. 
Lasere  v.  Rochereau,  156. 
Last  Chance  Mining  Co.  v.  Tyler  Mining 

Co.,  233. 
Laswell  Land  Co.  v.  Wilson  Co.,  26. 
Lau  Ow  Bew,  Re,  116,  128, 129. 
Lavagino  v.  Uhlig,  164. 
Layton  v.  Missouri,  143. 
Lazarus  v.  Prentice,  272. 
Leaf   Tobacco   v.    Board  of   Trade   of 

New  York  City,  Re,  32. 
Leber  v.  United  States,  199. 
Lees  v.  United  States,  243. 


Leftwich  v.  Lecann,  240. 

Lehigh  Mining  &  Mfg.  Co.,  Re,  65,  66. 

Lehigh  Water  Co.  v.  Easton,  159. 

Lehnen  v.  Dickson,  42,  218,  250. 

Lennon,  Re,  20,  63. 

Le  Sassier  v.  Kennedy,  164. 

Levis  v.  Kengla,  42. 

Levy  &  Co.,  Re,  200. 

Lewis  Publishing  Co.  v.  Wyman,  29. 

Lexington  Mill  &  El.   Co.   v.   United 

States,  19. 
Leyer  v.  United  States,  46. 
Lieburg  v.  Matthews,  45. 
Lincoln,  City  of,  v.  Sun  Vapor  S.  L.  Co., 

267. 
Litchfield,  Re,  200. 
Little  York  Gold  Washing  &  Water  Co. 

v.  Keyes,  67. 
Lockman  v.  Lane,  17,  226. 
Lockwood  v.  Exchange  Bank,  125. 
Loeb  v.  Columbia  Twp.  Co.,  68,  69,  70, 

112,  141,251. 
Loeber  v.  Schroeder,  24,  146. 
Loeser    v.    Savings    Deposit    Bank    & 

Trust  Co.,  90. 
Londoner  v.  Denver,  152. 
Long  v.  Farmers'  State  Bank,  214. 

v.  Marwell,  215. 
Louisiana     ex    rel.     Hubert    v.    New 

Orleans,  148. 
Louisiana  National  Bank  v.  Whitney, 

24. 
Louisiana    Navigation    Co.    v.    Oyster 

Commission,  137. 
Louisiana  Ry.  &  Nav.  Co.  v.  Behrman, 

148,  159. 
Louisville  v.  Halliday,  245. 
Louisville  &   Nashville  R.   R.   Co.   v. 
Bell,  48. 
v.  Finn,  182. 
v.  Garrett,  77. 
v.  Louisville  Trust  Co.,  130. 
v.  Melton,  141,  149. 
v.  Mottley,  5,  69.  _ 
v.  Railroad  Commission,  77. 
v.  Schmidt,  8,  158. 
v.  United  States,  76. 
v.  Western  Union  Teleg.  Co.,  61, 
62,  65,  70. 
Louisville  Trust  Co.  v.  Comingor,  87, 
93. 
v.  Knott,  61,  62. 
Lovell  McConnell  Co.  v.  Auto  Supply 

Co    258 
Loving,  Re,  84,  85,  86,  89,  90. 
Lowden  v.  United  States,  53. 
Lowitz  v.  Kimmerle,  223. 


(xxxiv) 


TABLE  OF  CASES 


Lucas  v.  Brooks,  216. 

Lucius  v.  Coleman  Co.,  64. 

Lumber  Co.  v.  Chapman,  243. 

Lutcher  Lumber  Co.  v.  Knight,  126, 130. 

Luxton  v.  North  River  Bridge  Co.,  20, 

25. 
Lykins  v.  Chesapeake  &  Ohio  Ry.  Co., 

77. 
Lytle  v.  Arkansas,  163. 


M 


Mac  Kenzie  v.  United  States,  52. 
McAllister  v.  Chesapeake  &  O.  R.  Co., 

65,  66. 
McBride  v.  Neal,  48,  242,  244. 
McCardle,  Re,  188. 
McClellan  v.  Garland,  82,  119,  227. 
McCormick  v.  National  Bank,  164. 
McCourt  v.  Singer  Bigger,  224,  227. 
McCullough  v.  Virginia,  148. 
McDonald  v.  Pless,  43. 

v.  United  States,  42. 
McFadden  v.  United  States,  68,   110, 

111. 
McFarlan  Carriage  Co.  v.  Solanas,  237. 
McGourki  v.  Toledo  &  O.  C.  R.  R.  Co., 

20,  21. 
McGovern  v.  Philadelphia  &  P.  R.  Co., 

71,  72. 
McGowan  v.  Parish,  182. 
McHenry  v.  Alforth,  116. 
Mclntire  v.  Wood,  4. 
McKim  v.  Voorhies,  103. 
McKnight  v.  James,  138. 

V.  United  States,  225. 
McLaughlin  v.  Hallowell,  137. 
McLeod,  Re,  199. 
McMahon,  Re.,  87,  90. 
McMicking  v.  Shields,  190. 
McNaught,  Re,  200. 
Magruder  v.  Belle  Ass'n.,  102. 

V.  Drury,  45,  243. 
Male  v.  Atchison  Ry.  Co.,  63. 
Mallencrodt  Works  v.  Jonefe,  144. 
Mallet  v.  North  Carolina,  146. 
Manhattan  Canning  Co.  v.  Wilson,  241. 
Manhattan  L.  I.  Co.  v.  Cohen,  232. 
Manning  v.  German  Ins.  Co.,  237,  242. 
Mansfield,  etc.  R.  R.  Co.  v.  Swan,  5. 
Mariam  Coal  Co.  v.  Peale,  21. 
Markuson  v.  Boucher,  191. 
Marshall  v.  Dye,  140. 
Martin,  Re,  86. 

v.  Burford,  256. 

v.  Hunter,  219. 


Martina  &  Lowell  Ry.  Co.  v.  Boston  & 

Lowell  Ry.  Co.,  234. 
Marvin  v.  Trout,  143,  145. 
Mason  v.  Pewabic  Min.  Co.,  23. 
v.  Shawneetown,  160. 
v.  United  States,  34,  43. 
Mason  City  v.  Wolf,  268. 
Massachusetts,  Re,  118. 
Masterson  v.  Henderson,  141. 

v.  Howard,  34. 
Matheson  v.  United  States,  215. 

v.  Hanna  Schoellkopf  Co.,  201. 
Mattox  v.  United  States,  43,  44,  57. 
Maury,  Re,  197. 
Mayer  v.  Richmond,  144. 
Maynard  v.  Hecht,  65. 
Mayor  v.  Cooper,  5. 
Mechanical  Appliance  Co.  v.  Castleman, 

62,  81. 
Memphis  v.  Brown,  22,  23. 
Menge  v.  Warriner,  21,  25. 
Mercantile,  etc.  Co.  v.  Kewanee,  34. 
Merchants  Stock  &  Grain  Co.,  Re,  17, 

18,  19,  205. 
Merchants  etc.  v.  Board  of  Trade,  197, 

200,  202,  204. 
Merriam  v.  Saalfield,  62,  155. 
Merriam  Co.  v.  Syndicate  Pub.  Co.,  71. 
Metallic  Extraction  Co.  v.  Brown,  101. 
Metcalf  v.  Barker,  116. 
Metropolitan  Trust  Co.,  Re,  119. 
Metropolitan  Waterworks  Co.,  Re,  118. 
Metzker  v.  Bonebrake,  28. 
Mexican  Central  R.  R.  Co.  v.  Pinkney, 

8. 
Mexico     International    Land     Co.     v. 

Larkin,  47. 
Meyers  v.  Cheesman,  29. 
Meyers  et  al.  v.  United  States,  235. 
Michaels  v.  Post,  10. 
Michigan  v.  Flint  &  Pere  Marquette 

R.  R.  Co.,  163. 
Michigan  Central  R.  Co.  v.  Vreeland, 

70,  182. 
Michigan  Ins.  Bank  v.  Eldred,  237,  243, 

244. 
Michoud  v.  Girod,  21. 
Miederich  v.  Lauenstein,  144. 
Miles  v.  United  States,  42. 
Miles  Salt  Co.  v.  Board  of  Commerce, 

143,  153. 
Miller  &  Lux,  Inc.  v.  East  Side  Canal 

&  Irrigation  Co.,  5. 
Miller  v.  McKenzie  ,  213. 

v.  Texas,  214. 
Mills  v.  Green,  29. 
Milner  v.  Meek,  34. 

(xxxv) 


TABLE  OF  CASES 


Miner,  Re,  94. 

Minnesota  v.  Hitchcock,  5,  9. 

Minot  v.  Mastin,  30. 

Mississippi  Mills  v.  Cohn,  14. 

Missouri  ex  rel.  Hill  v.  Dockerey,  146. 

Missouri  K.  &  T.  R.  Co.  v.  Cade,  37,  38. 

Missouri  &  K.  I.  Co.  v.  Olathe,  137, 
150,  159. 

Missouri  Pacific  Ry.  Co.  v.  Chicago  & 
Alton  R.  R.  Co.,  47,  24 
v.  Oleson,  48. 
v.  Omaha,  26. 
v.  Fitzgerald,  147. 

Missouri  R.  Com.  v.  I.  C.  R.  Co.,  153. 

Mitsui  v.  St.  Paul  F.  &  M.  Ins.  Co.,  217. 

Mitchell  Coal  &  Coke  Co.  v.  Pennsyl- 
vania R.  R.  Co.,  64. 

Mobile  &  O.  R.  Co.  v.  Tennessee,  157. 

Moline  Plow  Co.  v.  Webb,  237. 

Monages  v.  Alvarez,  161. 

Montana  ex  rel.  Haire  v.  Rice,  144. 

Montana    Mining    Co.    v.    St.    Louis 
Mining  &  Mill  Co.,  45,  125. 

Montana  R.  R.  Co.  v.  Warren,  45,  236. 

Montelibano  v.  La  Compania  Tobacos, 
14. 

Montgomery  L.  &  W.  P.  Co.  v.  Mont- 
gomery T.  Co.,  20,  33. 

Moore  v.  United  States,  43. 

Moore-Mansfield  Const.  Co.  v.  Electrical 
Installation  Co.,  159. 

Moran,  Re,  7. 

v.  Sturges,  103,  200. 

Morehouse  v.  Giant  Powder  Co.,  201. 

Morgan  v.  Daniels,  26. 
v.  Ward,  81. 

Morris  v.  Gilmer,  5. 

v.  United  States,  241. 

Morrissey,  Re,  43. 

Morse  v.  Anderson,  242. 

Motion  Picture  Patent  Co.  v.  Steiner, 
21. 

Moulor  v.  American  Life  Insurance  Co., 
217. 

Mound  Coal  Co.  v.  Jeffrey  Mfg.  Co., 
218,  237,  238,  239,  242,  243. 

Mountain  View  Mining  &  Mil.  Co.  v. 
McFadden,  142. 

Mt.  Vernon,  Re,  21. 

Mt.  Vernon  Woodberry  Cotton  Co.  v. 
Alabama  I.  P.  Co.,  137,  138. 

Mountz  v.  Hodgson,  24. 

Mueller,  Re,  84,  86,  89. 

v.  Nugent,  87,  91,  92,  93. 

Mullen  v.  Western  Union  Beef  Co.,  139. 
v.  United  States,  50. 

Muller  v.  Ehlers,  243. 

(xxxvi) 


Munday  v.  Vail,  10. 

Munroe,  Re,  199. 

Aiunson  S.  S.  Line  v.  Miramar  S.  S.  Co. 

Limited,  95. 
Murphy  v.  John  Hofman  Co.,  93. 

v.  Massachusetts,  195. 
Murray  v.  Louisiana,  154. 
Mussina  v.  Cavazos,  34. 
Mutual    Life    Insurance    Co.    of    New 
York  v.  McGrew,  141,  142,  143, 
145,  146. 
v.  Phinney,  82,  126,  209,  213,  233. 
Myles   Salt   Co.  _  v.   Iberia   &   St.   M. 
Drainage  District,  153. 


N 


Nalle  v.  James  Foyster  et  al.,  237,  245. 

Nash  v.  Harshman,  25. 

Nashua  R.   Corporation  v.  Boston  R. 

Corporation,  232. 
Nashville  Interurban  Ry.  Co.  v.  Bar- 

num,  55. 
National     Bank     v.     Louisville,     New 

Albany  &  Chicago  Ry.  Co.,  164. 
National  Bank  of  Commerce  v.  First 

National  Bank,  216. 
National  Biscuit  Co.  v.  Nolan,  44. 
National  Enameling  Co.,  Re,  101. 
National   Foundry   &    Pipe    Works   v. 

Oconto  City  Water  Supply  Co.,  70, 

233 
National  Tel.  Co.,  Re,  281,  282. 
Neagle,  Re,  43,  188. 
Neal  v.  Delaware,  154. 
Neilson  v.  Lagow,  148,  150. 
Nelson  v.  Boyd,  88. 
v.  Hecksher,  88. 
v.  Meehan,  227,  282. 
Newburyport  Water  Co.  v.  Newbury- 

port,  71,  149. 
Newcomb  v.  Wood,  43. 
New     Hampshire     Savings     Bank     v. 

Varner,  90. 
New  Orleans  v.  Delamore,  165. 

v.  Louisiana  Const.  Co.,  270. 
New  Orleans  Gas  Co.  v.  Louisiana  Light 

Co.,  160. 
New  Orleans  Waterworks  Co.  v.  Louis- 
iana Sugar  Refining   Co.,    149,    155, 

159,  160. 
Newport  Light  Co.  v.  Newport,  139, 162. 
New  York  Assets  Realization  v.  Mc- 

Kinnon,  222. 
New  York   Central   &   Hudson   River 

R.  R.  Co.  v.  Fraloff,  42. 


TABLE   OF  CASES 


New  York  Elect.  Lines  Co.  v.  Empire 

City  Subway  Co.,  159,  160. 
New  York  ex  rel.  Hatch  v.  Reardon,  38. 
New  York  Life  Ins.  Co.  v.  Dunlevy,  246. 
Nickell,  Re,  202. 
Nielsen,  Re,  190. 
Noble  v.  Union  River  Logging  Railroad 

Co.,  9,  10,  119. 
Nolen  v.  Reichman,  77. 
Norfolk  Turnpike  Co.  v.  Virginia,   139. 
Norfolk  &  W.  R.  R.  Co.  v.  Conley,  151. 

v.  Holbrook,  238,  243. 
Norris  v.  Jackson,  217,  246. 
North  American  Cold  Storage  Co.  v. 

Chicago,  70,  72. 
North  Carolina  R.  R.  Co.  v.  Swasey, 
137. 

v.  Zachary,  144. 
Northern  Pacific  R.  R.  Co.  v.    Amato, 
162. 
v.  Charles,  53. 
v.  Colburn,  163. 
V.  Minnesota,  160. 
v.  North  Dakota,  151. 
Northwestern  Laundry  v.  Des    Moines, 

64. 
Northwestern    S.    B.    &    Mfg.    Co.    v. 

Great  Lakes  E.  Works,  267. 
Northwestern     Terra     Cotta     Co.     v. 

Caldwell,  268. 
Northwestern    Union    Packet    Co.    v. 

Home  Ins.  Co.,  136. 
Norton,  Re,  20,  137. 
Novelty  Tufting  Machine  Co.  v.  Buser, 

281. 
Nudd  v.  Burrows,  52. 
Nutt  v.  Knut,  161. 


O 


Oates  v.  United  States,  203. 

Oceanic  Steam  Navigation  Co.,  Re,  22. 

O'Connor  v.  Peugh's  Lessee,  33. 

O'dell  v.  H.  Batterman  Co.,  21,  24,  25. 

Odcll  Mfg.  Co.  v.  Tebbets,  52. 

O'Dowd  v.  Russell,  35,  224. 

Ohio  Tax  Cases,  182. 

Old  Nick  Williams  Co.  v.  United  States, 

82. 
Old  Wayne  v.  McDonough,  7,  8,  152, 

157. 
Oliver  v.  Orendorf  Co.,  103. 
Omaha   El.    L.    &   P.    Co.   v.    City   of 

Omaha,  23,  209,  226,  277,  280,  282. 
O'Neal  v.  United  States,  205. 
O'Neil  v.  Learner,  152. 

v.  United  States,  111,  204. 


O'Neil  v.  Vermont,  214. 

Oregon  R.  R.  v.  Balfour,  111. 

Oregon  R.  R.  Navigation  Co.  v.  Dumas, 

241. 
O'Reilly  v.  Edrington,  220. 
Origet  v.  United  States,  236,  241. 
Orleans-Kenner  Elec.  Ry.  Co.  v.  Dunbar, 

33,  34,  219,  220. 
Orr  &  Lindsley  Shoe  Co.  v.  Needles,  267. 
Osborne  v.  Gray,  142. 
Owings  v.  Kincannon,  34. 
Owl  Creek  Coal  Co.  v.  Goleb,  47. 
Oxford  &  Coast  Line  R.  R.  Co.  v.  Union 

Bank,  237. 
Oxley  Stave  Co.  v.  Butler  County,  141, 

142,   143. 


Pacific  Coast  Co.  v.  Bankcroft  Co.,  8. 

Pacific  Electric  R.  R.  Co.  v.  Los  Angeles, 
158. 

Pacific  Live  Stock  Co.  v.  Lewis,  103. 

Pacific  R.  R.  Co.  v.  Missouri  Pacific 
Ry.  Co.,  46. 

Pacific  Teleg.  &  Telephone  Co.  v.  Hoff- 
man, 216. 

Pack  v.  Carter,  101. 

Paducah  v.  East  Telephone  Co.,  24. 

Page,  Re,  195. 

Palliser  v.  United  States,  23. 

Panama  Ry.  Co.  v.  Napier  Shipping  Co., 
126. 

Paraiso  v.  United  States,  214. 

Park  v.  Cameron,  63. 

Parker  v.  McClain,  149. 

Parsons,  Re,  119. 

Patillo  v.  Allen- West  Commission  Co., 
48. 

Patterson  v.  Colorado,  ex  rel.  Attorney- 
General,  205. 

Payne,  v.  Hook,  104. 
v.  Niles,  33,  140. 

Peace  Phosphate  Co.  v.  Edwards,  222. 

Pearson  v.  Yewdall,  213. 

Pearsons  v.  Bedford,  239. 

Pennoyer  v.  Neff,  8,  156. 

Pennsylvania  Coal  Co.  v.  Cassett,  130. 

Penn.  Mut.  Life  Ins.  Co.  v.  Austin,  70. 

Perkins  Co.  v.  Von  Baumbach,  246. 

Perovich  v.  United  States,  50. 

Peters  v.  Ferris,  20. 

Phelps  v.  Mayer,  241. 

Philadelphia    Casualty    Co.    v.    Fech- 
heimer,  33,  45,  52,  216,  242,  245,  250. 

Philadelphia  Co.  v.  Stimson,  127. 

(xxxvii) 


TABLE   OF  CASES 


Philadelphia  Fire  Association  v.   New 

York,  233. 
Phillips   &   Colby  Construction  Co.  v. 

Seymour,  215. 
Phillips    S.    T.    Co.    v.    Amalgamated 

Ass'n.  of  I.  S.  &  T.  W.,  19,  200,  201, 

204. 
Phcenix   Fire   &    Marine    Ins.    Co.    v. 

Tennessee,  162. 
Phcenix  Insurance  Co.  v.  Kerr,  43. 
Pierson,  Re,  88. 
Pim  v.  St.  Louis,  146. 
Pindel,  Re,  103. 

v.  Holgate,  86,  89. 
Plymouth   Coal   Co.    v.    Pennsylvania, 

37,  38. 
Plymouth  Gold  Min'g.  Co.  v.  Amadore 

Canal  Co.,  17. 
Ponder  v.  Brown,  256. 
Potts,  Re,  119,229. 
Potter  v.  United  States,  47,  48. 
Powell  v.  Brunswick  County,  142,    143. 
Prentice  v.  Stearns,  237. 

v.  Zane,  237. 
Prentis  v.  Atlantic  Coast  Line  Co.,  77. 
Press  Publishing  Co.  v.  Monroe,  72. 
Preston  v.  Chicago,  150. 
Priolean  v.  United  States,  243. 
Proudfit  L.  L.  Co.  v.  Kalamazoo  L.  L. 

B.  Co.,  198,  201. 
Provident  Life  v.  Trust  Co.,  26. 
Puget  Sound  Traction  Light  &  Power  Co. 

v.  Lawery,  200. 
Pullman  Co.  v.  Groom,  261. 


R 


Radford  v.  Folsom,  222. 
Railroad  Co.  v.  Harris,  224. 

V.  Maryland,  148. 

v.  McGee,  243. 
Rainey  v.  Grace,  258,  259. 
Ralston,  Re,  212,  213,  224. 
Randall  Co.  v.  Fogleson  Machine  Co., 

208,  209,  224,  227. 
Randolph  v.  Allen,  216,  217. 
Rathman,  Re,  92. 
Ray  v.  Law,  137. 
Raymond    v.    Chicago    Traction    Co., 

153,  154,  158. 
Reagan  v.  Farmers'  Loan  &  T.  Co.,  104, 

153. 
Redfield  v.  Parks,  232. 
Reed,  Re,  11. 

v.  American  Express  Co.,  95. 

v.  Marsh,  232. 
Reeves  v.  Oliver,  20,  24. 


Reinman.v.  City  of  Little  Rock,  233. 
Reynolds  v.  Stockton,  6,  10, 12, 152,  157. 
Rhame  v.  Southern  &  C.  Co.,  220 
Rhode  Island  v.  Massachusetts,  6. 
Rhodes  v.  Iowa,  42. 
Rice,  Re,  82. 

v.  Ames,  15,  23. 
Richard  v.  Michigan,  69. 
Richardson  v.  Green,  222,  223. 

v.  Loree,  46. 

v.  McChesney,  29. 

v.  Shaw,  128. 
Riggs  v.  Johnson  County,  6. 
Rininger  v.  Puget  Sound  Electric  Co.,  36. 
Rio    Grande    Western    R.    R.    Co.    v. 

Stringham,  20,  137. 
Rison  v.  Parkham,  86,  90. 
Robb  v.  Connolly,  154. 

v.  Vos,  158. 
Robert  v.  Great  Northern  Ry.,  16. 

v.  Reilly,  195. 
Roberts  v.  Kendrick,  222,  224,  226. 
Robertshaw  Mfg.  Co.,  Re,  234. 
Robertson  v.  Cockrell,  242. 
Robertson  Banking  Co.  v.  Chamberlain, 

228, 233. 
Robins   Dry   Dock   &   Repair   Co.    v. 

Chesborough,  94,  209. 
Robinson,  Re,  30,  31,  197. 

v.  Caldwell,  112. 

v.  Felt,  20. 

v.  Iron  Railway  Co.,  146. 

v.  Stearns,  52. 

v.  Suburban  Brick  Co.,  114. 
Roby  v.  Colehour,  148. 
Rochford,  Re,  90. 
Roe,  Re,  120. 
Rogers  v.  Hennepin  County,  61,   150. 

v.  Peck,  191. 

v.  Penobscot  Mining  Co.,  218. 
Romes  v.  Cotton  Press  Co.,  233. 
Root  v.  Mills,  208. 
Rosaly,  Widow  of  Rarbaumer  v.  Frazier, 

44. 
Rosenbaum  v.  Bauer,  22. 
Rosenthal  v.  New  York,  37,  38. 
Rosenzweig,  Re,  203. 
Rose  Shoe  Mfg.  Co.,  Re,  88. 
Rothschild  v.  Knight,  140,  144. 
Roux  v.  Commissioner  of  Immigration, 

192. 
Rowan  v.  Ide,  208. 
Rowland,  Re,  119. 
Royal  Arcanum  v.  Green,  162,  268. 
Royal  Trust  Co.  v.  Washburn,  200. 
Royall,  Re,  191. 
Rudd  v.  United  States,  50, 


(xxxviii) 


TABLE  OF  CASES 


Rumiger  v.  Puget  S.  El.  Co.,  213. 
Runkle  v.  Burnham,  245. 
Russell,  Re,  1G8. 

v.  Sebastian,  159. 
Rust  v.  United  States  Waterworks  Co., 

34,  81. 
Rutland  R.  R.  Co.  v.  Central  Vermont 

R.  R.  Co.,  150. 
Ryan  v.  United  States,  277. 
R.  &  W.  Skirt  Co.,  Re,  93. 


St.  Clair  v.  Cox,  152,  157. 
St.  Louis  I.  M.  &  S.  Ry.  Co.  v.  Bellamy, 
36. 

v.  McWhirter,  146,  150. 

v.  Southern  Express  Co.,  20,  137. 

v.  Taylor,  146,  161. 
St.  Louis  &  Kansas  City  Land  Co.  v. 

Kansas  City,  142. 
St.  Louis  &  S.  W.  Ry.  v.  Alexander,  157. 
St.   Louis,  San  Francisco  Ry.   Co.   v. 
Barker,  229. 

v.  Seale,  139. 

v.  Shepherd,  145,  270. 
St.  Louis  National  Bank  v.  U.  S.   Insur- 
ance Co.,  272. 
St.  Paul  Gaslight  Co.  v.  St.  Paul,  160. 
Saalfield  v.  Marion  Co.,  268. 
Sachs  &  Watts,  Re,  31,  129,  189. 
Sage  v.  Railroad  Company,  212,  223. 
Saling  v.  Bollander,  42. 
Salsburg  v.  Blackford,  86. 
Saltonstall  v.  Birtwell,  125. 
San  Antonio  &  A.  P.  R.  Co.  v.  Wagner, 

139,  152. 
Sandals  v.  United  States,  46,  50. 
Sanford  Fork  &  Tool  Co.,  Re,  119,  229. 
San  Jose"  Land  &  Water  Co.  v.  San  Jose- 

Ranch  Co.,  144,  145, 147,  152. 
Sata,  Re,  193. 
Savannah  v.  Jesup,  33. 
Savin,  Re,  197,  198,  204. 
Sawyer,  Re,  10,  11. 
Sawyer  v.  Piper,  71,  149,  155. 
Sayward  v.  Denny,  145. 
Scaife  v.  Western  North  Carolina  Land 

Co.,  239,  243. 
Scarborough  v.  Pargoud,  209. 
Schapp,  v.  United  States,  268. 
Schlosser  v.  Hemphill,  137. 
School  Dist.  of  Ackley  v.  Hall,  217. 
Schoonmaker  v.  Gilmore,  162. 
Schulman,  Re,  203. 
Schuyler  Natl.  Bank  v.  Gadson,  20. 


Schwartz  v.  United  States,  202,  203. 
Schweer  v.  Brown,  87. 
Scott  v.  Donald,  66,  70. 

v.  McNeal,  104,  153,  154,  155,  156, 
157,  158. 
Scruggs  v.  Memphis  &  C.  R.  R.  Co.,  219, 
Scully  v.  Bird,  7. 
Seaboard  Air  Line  R.  Co.  v.  Duvall,  146. 

v.  Horton,  221. 

v.  Padgett,  149. 

v.  Seegers,  38.     I 
Secombe,  Re,  30,  31. 
Seeberger  v.  McCormick,  164. 
Seward  v.  Comeau,  220. 
Seymour  v.  Freer,  219. 
Shapiro  v.  United  States,  114. 
Shea  v.  Lewis,  86,  87,  88,  91,  92,  93. 

v.  United  States,  256. 
Sheeler  v.  Alexander,  227,  281. 
Sheffield,  etc.  Ry.  Co.  v.  Gordon,  27. 
Sheldon  v.  Sill,  4. 
Shepherd  v.  Pepper,  219. 
Shields  v.  Coleman,  65. 
Shively  v.  Bowlby,  163. 
Shultis  v.  McDougal,  110. 
Siegel  v.  Swarts,  24. 

Siler  v.  Louisville  &  N.  R.  Co.,  70,  182. 
Simon  v.  Craft,  8,  158. 

v.  Southern  Railway  Co.,  104,  158. 
Simpson  v.  Greeley,  34. 

v.  United  States,  46. 
Singer  Sewing  Machine  Co.  v.  Brickell, 

70,  182. 
Small  v.  Northern  Pacific  R.  R.  Co.,  228. 
Smalley  v.  Laugenour,  164. 
Smith  v.  Bourbon  County,  120. 

v.  Currie,  213,  223,  224. 

v.  Farben  Fabriken,  258. 

v.  Indiana,  140. 

v.  McKay,  61,  62,  82. 

v.  St.  Louis,  50. 

v.  United  States,  43,  44,  50,  57. 

v.  Vulcan  Iron  Works,  130. 

v.  Whitney,  17. 
Smyth  v.  Strader,  213. 
Snowden  v.  Canal  Co.,  245. 
Sona  v.  Aluminum  Casting  Co.,  18,  202. 
South  Carolina  v.  Wesley,  33,  140. 
Southard  v.  Russell,  280,  282,  283. 
Southern  Cotton  Mills  v.  Elliott,  86,  89. 
Southern  Pacific  Co.  v.  Kelley,  227. 

v.  Pool,  48. 

v.  Stewart,  241. 
Southern  Pacific  R.  R.  Co.  v.   Interstate 
Commerce  Commission,  28. 

V.  Schuyler,  150,  151. 
Southern  Pine  Co.  v.  Ward,  256. 

(xxxix) 


TABLE   OF  CASES 


Southern  Railroad  Co.  v.  Crockett,  161. 

v.  Lloyd,  141. 
Southern  Railway  Co.  v.  King,  37,  38. 

v.  Postal  Telegraph  Cable  Co.,  20, 
24. 
Southwestern   Brewery   &   Ice    Co.    v. 

Schmidt,  42. 
Sowles  v.  Norcross  Bros.  Co.,  49. 
Sparf  &  Hansen  v.  United  States,  51. 
Sparrow  v.  Strong,  237. 
Spencer  v.  Duplan  Silk  Co.,  149. 
Spies,  Re,  143. 

v.  Illinois,  143. 
Spreckels   Sug.    Ref.    Co.   v.    McClain, 

69,81,  112. 
Spring  Co.  v.  Edgar,  52. 
Springfield  Safe  Deposit  Co.  v.  City  of 

Attica,  215. 
Staat,  Re,  282. 
Staats  Co.  v.  Security  Trust  &  Savings 

Bank,  117. 
Standard  Stock  Food   Co.   v.   Wright, 

37  38 
Stanley  v.  Schwalby,  140,  151,  163,  245. 
Starr  v.  United  States,  44,  50. 
Starr  Co.  v.  Madden,  241. 
State  v.  Jones,  277. 
State  of  Pennsylvania  v.  Wheeling  &  B. 

Bridge  Co.,  14. 
Stearns  v.  Minnesota,  153. 
Steever  v.  Rickman,  42. 
Stevens  v.  Clark,  209. 

v.  Fuller,  194,  195. 

v.  Griffith,  138. 
Stevenson  v.  Barber,  42,  215,  268. 

v.  Fain,  4,  5. 
Steward  v.  Masterson,  219. 
Stewart  v.  Kansas  City,  140,  149. 

v.  Wyoming  Co.,  231. 
Stokes  v.  Williams,  23,  35,  102. 
Storey  v.  Storey,  227. 
Storti  v.  Massachusetts,  274. 
Stow  v.  United  States,  51. 
Stratton  v.  Park  Commission,  233. 

v.  Stratton,  138,  139. 
Stratton 's    Independence    v.    Howbert, 

48,  116. 
Streator  v.  Sanitary  District,  42,  245, 

246. 
Streator  Metal  Stamping  Co.,  Re,  84,  90. 
Street  &  Smith  v.  Atlas  Mfg.  Co.,  128. 
Stromberg  v.  Arnson,  21. 
Stuart  v.  Hayden,  26. 

v.  Reynolds,  18,  197,  200. 
Sulley  v.  American  National  Bank,  144. 
Sun  Printing  &  Pub.  Co.,  Re,  81. 
Supervisors  v.  Durant,  168. 

(xl) 


Suydam  v.  Williamson,  3,  237,  239. 

Swan,  Re,  195. 

Swerungen  v.  St.  Louis,  146,  163. 


Talbott  v.  Press  Pub.  Co.,  244 
Tanenhaus,  Re,  86. 
Tang  v.  United  States,  43. 
Taylor  v.  Leesnitzer,  256. 

v.  Porter,  158. 
Teal  v.  Walker,  218. 
Teel  v.  Chesapeake  &  O.  R.  R.  Co.,  36. 
Tennessee  v.  Union  Planters  Bank,  69. 
Terry,  Re,  197. 
Texas' &  P.  R.'Co.  v.  Kirk,  214. 

v.  Hill,  111. 

v.  Prater,  279. 

v.  Railroad  Commission,  26. 
Thallman  v.  Thomas,  26. 
Thatcher,  Re,  30,  31. 
The  Adula,  66. 
The  Bayonne,  66,  244. 
The  Brittania  v.  Cleugh,  43. 
The  Burns,  33. 

The  Bylands,  35,  213,  219,  220. 
The  Catawissa,  95. 
The  Conqueror,  124, 125, 126. 
The  E.  A.  Packer  v.  New  Jersey  Co.,  239. 
The  Fair  v.  Kohler,  66. 
The  Fullerton,  239. 
The  Habana,  135. 
The  Ira  M.  Hedges,  61. 
The  Jefferson,  61. 
The  Lady  Pike,  229. 
The  Maria  Martin  v.  Northern  Trans- 
portation Co.  of  Ohio,  95. 
The  Mary,  156. 
The  Montello,  162. 
The  New  York,  94. 
The  Paquete  Habana,  66. 
The  Protector,  229. 
The  State  of  California,  95. 
The  Steam  Dredge  A.,  228. 
The  Transfer,  22. 
The  Virginia  v.  West,  228. 
Thomas  v.  Green  County,  256. 

v.  Taylor,  148,  158. 
Thompkins  v.  Missouri  K  &  T.  Ry.,  216. 
Thompson  v.  R.  R.  Co.,  250. 

v.  Thompson,  12. 

v.  Tolmie,  10. 

v.  Whitman,  12. 
Threadgill  v.  Piatt,  209. 
Tierman  v.  Chicago  Life  Ins.  Co.,  55, 

57,  251. 
Tilghman  v.  Proctor,  28. 


TABLE  OF   CASES 


Tillinghast,  Re,  197. 

Tilt  v.  Kelsey,  161. 

Tinsley  v.  Anderson,  139,  192. 

v.  Treat,  192. 
Tire  Co.  v.  Car  Co.,  21. 
Title  Guarantee  &  Trust  Co.  v.  United 

States,  224. 
Todd  v.  Daniel,  34,  140. 
Toledo  M.  W.  Co.  v.  Foyer  Bros  &  Co., 

209. 
Toledo  Newspaper  Co.  v.  United  States, 

5. 
Toledo,  St.  L.  &  W.  R.  Co.  v.  Perenchio, 

9. 
Tom  Hong  v.  United  States,  43. 
Toop  v.  Ulysses  Land  Co.,  71. 
Towson  v.  Moore,  26. 
Traer  v.  Clews,  165. 
v.  Fowler,  268. 
Trenton  &  Mercer  Co.  Traction  Corp. 

v.  Inhabitants  of  City  of  Trenton,  77. 
Tripp  v.  Santa  Rosa  Street  Ry.  Co.,  223. 
Truax  v.  Raich,  154. 
Truckee  River  Gen.  Elec.  Co.  v.  Benner, 

45. 
Tucker  v.  Alexandroff,  129. 

v.  United  States,  46,  47. 
Turner  v.  Bank  of  North  America,  4. 

v.  New  York,  42. 
Tuttle  v.  Claflin,  21,  34. 
Twedee  Trading  Co.  v.  United  States,  99. 
Tyler  v.  Judges  of  the  Court  of  Registra- 
tion, 38. 
Tyler  Co.  v.  Ludlow  Sayler  Co.,  81, 157. 

U 

Ulmer,  Re,  31. 

Unhairing  Co.  v.  American  Fur  Refining 

Co.,  28. 
Union  &  Planters  Bank  v.  Memphis,  67. 
Union  M.  L.  Ins.  Co.  v.  Kirchoff,  138. 
Union  Naval  Stores  Co.  v.  United  States, 

42. 
Union  Pacific  R.  R.  Co.  v.  McDonald, 
48. 
v.  Harris,  110. 
v.  Stewart,  232. 
v.  United  States,  168. 
Union  Trust  Co.  v.  Westhus,  114. 
United  Kansas  Cement  Co.  v.  Harvey, 

58. 
United  States,  Re,  43. 
v.  Adams,  168. 
v.  Alamagorda  Lumber  Co.,  212, 

213. 
v.  Appel,  203. 


United  States  v.  Arredondo,  6. 
v.  Barrett,  199. 
v.  Basler,  209. 
v.  Beatty,  24,  85,  128. 
v.  Beavers,  197. 

v.  Bellingham  Bay  Boom  Co.,  163. 
v.  Barnow,  78. 
v.  Bishop,  43. 
v.  Black,  119. 
v.  Breitling,  243. 
v.  Carroll,  199. 
v.  Carter,  78. 
v.  Carey,  243. 
v.  Clark,  25. 
v.  Clippings,  19. 
v.  Cohn,  30. 
v.  Colorado,  199,  200. 
v.  Congress  Const.  Co.,  61. 
v.  Cooke,  271. 
v.  Cruikshank,  202. 
v.  Curry,  223,  227. 
v.  Dalcour,  99. 
v.  Davis,  166. 
v.  Dev.  Co.,  37. 
v.  Dickinson,  130. 
v.  Dola,  30. 
v.  Evans,  38. 
v.  Gehr,  199. 
v.  Goodwin,  4. 
v.  Griffith,  273. 
v.  Haggerty,  199. 
v.  Hailey,  16. 

v.  Hamburg-American  Line,  270. 
v.  Hammond,  217. 
v.  Henry,  169. 
v.  Hudson,  4. 

v.  Huff,  198,  199,  200,  202,  204. 
v.  Jahn,  60. 
v.  Jones,  242,  243,  244. 
v.  Jose,  202. 
v.  Keitel,  78. 
v.  Lair,  54. 
v.  Lamont,  119. 

v.  Lexington  Mill  &  Elev.  Co.,  19. 
v.  Lombardo,  213. 
v.  Lou  Chu,  193. 
v.  Louisville  &  Nashville  R.  R.  Co., 

19,  120. 
v.  Mayer,  16,  30,  82,  115,  116,  118, 

227  282 
v.  Minnesota  &  N.  W.  R.  Co.,  273. 
v.  Mulry,  30. 
v.  Neugebauer,  30. 
v.  N.  Y.  C.  R.  R.  Co.,  19. 
v.  New  York  Co.,  8. 
v.  Nixon,  78. 
v.  1363  Bags  of  Mdse.,  50. 

(xli) 


TABLE  OF  CASES 


United  States  v.  Oppenheim,  52. 
v.  Pacheco,  228. 
v.  Patten,  78. 
v.  Petkos,  194. 
v.  Phillips,  36,  222,  223. 
v.  Portale,  78. 
v.  Quan  Wah,  193. 
v.  Ramsey,  56,  57. 
v.  Reading  Ry.,  50. 
v.  Redfern,  193. 
v.  Sanges,  38,  277. 
v.  Severens,  82. 
v.  Shapiro,  114. 
v.  Shipp,  197,  204. 
v.  Sibray,  192. 
v.  Sing  Tuck,  190. 
v.  Stevenson,  78. 
v.  Sweeney,  204. 
v.  Taylor,  231,  251. 
v.  Tennessee  &  C.  R.  Co.,  218. 
v.  Terminal  Railroad  Assn.,  37,  275. 
v.  Three  Friends,  125,  128,  129. 
v.  Toledo  Newspaper  Co.,  197,  198. 
v.    Trans-Missouri    Freight    Assn., 

114. 
v.  Tsuji,  194. 
v.  U.  S.  Fidelity  &  Guaranty  Co., 

52,245. 
v.  United  States  Steel  Corporation, 

235,  249,  252. 
v.  Wetmore,  53. 
v.  Williams,  192 
v.  Vigil,  208. 

United  States  ex  rel.  Boarman  v.  Louis- 
iana, 32. 
ex  rel.  Fong  On  v.  McCarthy,  195. 
ex  rel.  Kinney  v.  U.  S.  Fidelity  & 

Guaranty  Co.,  241. 
ex  rel.  Marshall  v.  Gordon,  195. 
United  States  Fidelity  Co.  v.  Bray,  84. 
United  States  Motion  Picture  Co.,  Re, 

215. 
United  States  Portland  Cement  Co.  v. 

Harvey,  241. 
United   States  Sugar  Refining   Co.   v. 

Providence,  232. 
United   Surety  Co.  v.  American   Fruit 
Product  Co.,  71. 

V 

Vanascope,  Re,  86,  87. 

Van  Stone  v.  Still  well  &  Bierce  Mfg.  Co., 

216,  242. 
Vaughn  v.  South  Carolina,  271. 
Vicksburg  v.  Henson,  110,  111. 

(xlii) 


Vicksburg  R.  R.  Co.  v.  O'Brien,  44. 
Vicksburg   Waterworks   Co.,  v.    Vicks- 
burg, 153. 
Villa  Bolas  v.  United  States,  223. 
Virginia,  Re,  6,  154. 

v.  Paul,  119. 

v.  Rives,  154. 
Virginia  Coupon  Cases,  138. 
Voorhees  v.  John  Mfg.  Co.,  23. 

W 

Wabash  R.  R.  Co.  v.  Adelbert  College. 

22. 
Wade  v.  Lawder,  164. 
Wagner  v.  Drake,  103. 

v.  Meccans,  280,  281. 
Waldron  v.  Waldron,  244. 
Walker  v.  Duville,  16. 

v.  McLoud,  154. 
Walker  Mfg.  v.  Knox,  42. 
Wall,  Re,  30,  31. 

v.  Cox,  116,  117. 
Walsh  v.  Columbia  R.  R.  Co.,  162. 

v.  United  States,  54. 
Walters  v.  McKennis,  23,  188. 
Walton  v.  Marietta  Chair  Co.  221. 
Ward  v.  Cochran,  244. 
Ward  Baking  Co.  v.  Weber  Bros.,  46, 

208. 
Washington  v.  Dennison,  212. 
Washington  ex  rel.  Oregon  R.  &  Nav. 

Co.  v.  Fairchild,  151. 
Washington   Securities   Co.    v.    United 

States,  26. 
Washington  Virginia  Ry.  Co.   v.   Real 

Estate  Trust,  157. 
Waterman  Co.  v.  Modern  Pen  Co.,  26. 
Watkins,  Re,  6,  10,  11. 
Watson  v.  Jones,  103. 
Watts,  Re,  120. 

Waxahachie,  City  of,  v.  Coler,  209. 
Wayman-Britton  Co.  v.  Ladd,  272. 
Webb  v.  York,  188. 
Weber  v.  Fried,  149. 
Webster  v.  Reid,  156. 
Webster  Coal  &  Coke  Co.  v.  Cossatt,  24. 
Wedding  v.  Meyler,  140,  145. 
Weems  v.  United  States,  45. 
Welles  v.  Bryant,  271. 
Werlein  v.  New  Orleans,  161. 
Wesoky  v.  United  States,  54. 
West  v.  Irwin,  255. 
West  Chicago  R.  R.  Co.  v.  Chicago, 

147,  148. 
Westerman   Co.   v.    Dispatch   Printing 

Co.,  250. 


TABLE  OF  CASES 


Western  Life  Indemnity  Co.  v.  Rupp, 

104. 
Western    Union    Teleg.    Co.    v.    Ann 
Arbor  R.  R.  Co.,  67. 

v.  Baker,  241. 

v.  Crovo,  139. 

v.  U.  S.  &  M.  T.  Co.,  67. 
Westinghouse  Co.  v.  Stanley,  227. 
Weston  v.  Charleston,  137. 
Wetmore  v.  Karrick,  282. 

v.  Rymer,  272. 
Weyman-Bruton  Co.  v.  Ladd,  278. 
Wheeler  v.  United  States,  43. 
Wheeling  &  B.  Bridge  Co.  v.  Wheeling 

Bridge  Co.,  138. 
Whitaker  v.  United  States,  240. 
White  v.  Schlock,  116. 

v.  United  States,  218. 

v.  Van  Horn,  52. 
Whitfield  v.  Hanges,  190,  192,  193. 
Whiting  v.  Bank  of  the  U.  S.,  137,  232. 
Whitney  v.  Dick,  123,  127. 
Whitten  v.  Tomlinson,  191. 
Wiborg  v.  United  States,  44. 
Wight,  Re,  282. 
Williams  v.  Bank  of  United  States,  34. 

v.  Bruffy,  138. 

v.  Savings  Bank,  228. 

v.  United  States,  44,  45. 
Williamson  v.  Berry,  104. 

v.  United  States,  6,  71. 
Wilmington  v.  Ricaud,  237. 
Wilmington  W.  R.  Co.  v.  Alsbrook,  159. 
Wilmington  R.  R.  v.  Reid,  160. 
Wilson  v.  Kiesel,  33. 

v.  Life  &  Fire  Insurance  Co.,  34, 
213. 

v.  Merchants  Loan  &  Trust  Co., 
246. 

v.  North  Carolina,  5,  149. 

v.  Pauly,  55. 

v.  United  States,  6,  71. 
Wilson  Cypress  Co.    v.   Del.   Pozo  y 

Marcos,  110. 
Windsor  v.  McVeigh,  8,  11,  152,  157. 


Wingert  v.  National  Bank,  29,  272. 
Winn,  Re,  119. 

Winters  v.  United  States,  33,  34,  35. 
Winterton  Gum  Co.  v.  Autosales  G.  & 

E.  Co.,  216. 
Witherbee,  Re,  86,  88. 
Wold  v.  Colt,  157. 
Wong  Wing  v.  United  States,  192. 
Wood  v.  Brush,  154. 

v.  Chesborough,  150, 151. 
v.  Lide,  212. 
v.  Weimer,  143. 
v.  Wilbert,  214. 
Wood    Mowing    &    Reaping    Co.    v. 

Skinner,  250. 
Woods,  Re,  123. 
Woodward  v.  Chicago,  Milwaukee  &  St. 

Paul  Ry.  Co.,  48. 
Worden  v.  Searls,  200. 
World's  Columbian  Exposition  v.  United 

States,  82. 
Worthington  v.  Elmer,  48. 

v.  Mason,  217. 
Wright  v.  Blodgett,  26. 
Wurts  v.  Hoagland,  137. 


Yazoo  &  Miss.  Valley  R.  R.  Co.    v. 
Adams,  152. 

v.  Jackson  Vinegar  Co.,  37. 
Yeaton  v.  Lennox,  228. 
Yick  Wo  v.  Hopkins,  153,  154. 
Yorkshire  etc.  Co.  v.  Fowler,  21. 
Yorkville  Coal  Co.,  Re,  91,  93. 
Young,  Re,  12. 

v.  Carrigan,  50. 

v.  Martin,  237. 
Younghouse  v.  United  States,  30. 


Zudig  v.  Baldwin,  145. 


(xliii) 


PART  I. 
APPEAL  AND  ERROR  IN  THE  FEDERAL  COURTS. 


(1) 


Ch.  I) 


FUNDAMENTALS   OF  APPEAL  AND   ERROR 


§§1-2 


CHAPTER  I. 
Fundamentals  of  Appeal  and  Error — General  Observations. 


Sec.  Sec. 

1.  General  definition  of  appeal.  14. 

2.  General  definition  of  writ  of  error. 

3.  The  distinction  maintained.  15. 

4.  Constitutional  provision. 

5.  Supreme  Court  only  court  created       16. 

by  Constitution. 

6.  Power    of    Congress    over    inferior      17. 

courts. 

7.  Congress  fixes  limit  of  jurisdiction.  18. 

(a)  Establishment   and    abolition       19. 
of  courts. 

(b)  Congressional  action.  20. 

8.  The  New  Federal  Judicial  Code.  21. 

9.  Jurisdiction  the  fundamental  ques-      22. 

tion:  23. 

(a)  Of  the  Appellate  Court.  24. 

(b)  Of  the  Court  below. 

Appellate   jurisdiction — when    re-      25. 
tained. 

10.  Jurisdiction  defined.  26. 

11.  Essentials  of  appellate  jurisdiction.         27. 

12.  Scope    of    jurisdiction    generally —      28. 

nature  of  judgment. 

13.  Jurisdiction  not  affected  by  errone-      29. 

ous  ruling. 


Authority  to  consider  jurisdiction 
incident  to  general  power. 

Judgment  without  notice  absolutely 
void. 

Jurisdiction  over  subject-matter  con- 
ferred by  authority. 

Jurisdiction  over  person  obtained  by 
process — Service  by  fraud. 

Process  in  rem. 

Jurisdiction  over  subject-matter  can- 
not be  conferred  by  consent. 

Organic  power  of  the  court. 

Certain  facts  jurisdictional. 

Quasi  jurisdictional  facts. 

Decree  outside  of  issues,  invalid. 

Power  to  render  particular  judgment; 
nature  of  judgment. 

Excessive  penalty  annuls  judg- 
ment. 

Effect  of  want  of  jurisdiction. 

Error  does  not  avoid  jurisdiction. 

"Full  faith  and  credit"  will  not  be 
accorded  where  no  jurisdiction. 

General  remarks. 


§  i.  General  definition  of  appeal. 

An  appeal  is  a  civil  law  process,  and  removes  a  cause  entirely, 
subjecting  the  law  and  the  fact  to  a  review  and  re-trial. 
§  2.  General  definition  of  writ  of  error. 

A  writ  of  error  is  a  common  law  process,  and  removes  for 
re-examination  nothing  but  the  law. l 

1  Suydam  v.  Williamson,  20,  How  (U.  S.)  427,  15  L.  Ed.  978;  Cohen  v.  Virginia, 
6  Wheat.  264, 5  E.  Ed.  257;  Hudson  v.  Parker,  156  U.  S.  2S6, 39  L.  Ed.  427, 15  Sup.  Ct. 
Rep.  450. 

(3) 


Ch.  I)  FUNDAMENTALS  OF  APPEAL  AND   ERROR  §§  3-7 

§  3.  The  distinction  maintained. 

The  statutes  of  the  United  States  speak  of  appeals  and  writs 
of  error,  but  do  not  confound  them.  Appeals  and  writs  of  error 
are  purely  statutory.  None  of  the  courts  have  any  inherent 
jurisdiction,  their  jurisdiction  depending  wholly  upon  statutory 
provisions. x 
§  4.  Constitutional  provision. 

When  this  nation  was  created,  it  became  necessary  to  its 
existence  to  lodge  its  judicial  power  in  national  courts.  This 
found  expression  in  the  Constitution  of  the  United  States,  which 
provides  that,  "The  judicial  power  of  the  United  States  shall  be 
vested  in  one  Supreme  Court  and  in  such  inferior  courts  as  the 
Congress  may  from  time  to  time  ordain  and  establish.  "2  .  .  . 
§  5.  Supreme  Court  only  court  created  by  Constitution. 

The  powers  of  the  general  government  are  made  up  of  con- 
cessions from  the  people  of  the  several  states.  The  judicial  power 
of  the  United  States  is  a  constituent  part  of  these  concessions. 
From  the  language  of  the  Constitution  (Sect.  1,  Art.  Ill),  it  is 
clear  that  the  Supreme  Court  is  the  only  court  of  the  United  States 
created  by  the  Constitution  and  possessing  jurisdiction  and 
power  derived  directly  and  immediately  from  that  instrument 
and  of  which  Congress  cannot  deprive  it.3 
§  6.  Pov/er  of  Congress  over  inferior  courts. 

The  jurisdiction  and  power  of  all  inferior  courts  of  the  United 
States  is  entirely  derived  from  and  dependent  upon  some  Act  of 
Congress. 4 
§  7.  Congress  fixes  limit  of  jurisdiction. 

The  Constitution  lodged    the  whole  judicial   power  in  the 

1  U.  S.  v.  Goodwin,  7  Cranch,  110,  3  L.  Ed.  284;  Dower  v.  Richards,  151  U.  S.  658, 
14  Sup.  Ct.  Rep.  452, 38  L.  Ed.  305;  Ex  parteCrane,  5 Peters  205, 8L.  Ed.  98  (diss. op.) 

*  Sect.  1,  Art.  III.,  of  the  Constitution  of  U.  S. 

»  U.  S.  v.  Hudson,  7  Cranch,  32,  3  L.  Ed.  259;  Stevenson  v.  Fain,  195  U.  S.  167, 
49  L.  Ed.  142,  25  Sup.  Ct.  Rep.  6,  49. 

4  In  re  Burns  136  U.  S.  609,  34  L.  Ed.  508;  Sheldon  v.  Sill,  8  How.  449,12  L.  Ed. 
1151;  Turner  v.  Bank  of  North  Am.,  4  DalL  8,  1  L.  Ed.  718;  Mclntire  v.  Wood,  7 
Cranch,  504,  506,  3  L.  Ed.  420;  Stevenson  v.  Fain,  195  U.  S.  165,  49  L.  Ed.  142, 
25  Sup.  Ct.  Rep.  6,  49. 

(4) 


Ch.  I)  FUNDAMENTALS   OF  APPEAL  AND   ERROR  §§  8-9 

national  courts,  but  left  to  Congress  to  prescribe  the  limit  of 
the  jurisdiction  of  these  courts. x 

(a)  The  power  of  Congress  to  create  and  abolish  inferior  courts 
is  fully  established. a 

(b)  Since  the  adoption  of  the  Constitution,  Congress  did 
from  time  to  time  create  and  abolish  Federal  inferior  courts,  and 
on  March  3,  191 1,  it  passed  a  new  Federal  Judicial  Code,  which 
took  effect  on  January  1,  19 12,  and  has  since  been  amended  in 
many  particulars. 

§  8.  The  new  Federal  Judicial  Code. 

The  new  Code  abolished  the  U.  S.  Circuit  Courts  and  retained 
the  District  Courts.  The  District  Courts  thus  became  vested 
with  all  the  jurisdiction  and  power  theretofore  possessed  by  the 
Circuit  Courts.  Such  parts  of  the  new  Code  and  the  recent 
amendments  as  are  within  the  scope  of  this  work  will  be  found  in 
this  book,  with  such  amplification  as  the  author  deems  necessary 
for  a  proper  consideration  of  the  subject. 

§  9.  Jurisdiction    the    fundamental    question — Appellate   juris- 
diction— When  retained. 

On  every  writ  of  error  or  appeal,  the  first  and  fundamental 
question  is  that  of  jurisdiction,  first  of  the  Appellate  Court,  and 
then  of  the  court  from  which  the  record  comes.  This  question  the 
court  is  bound  to  ask  and  answer  for  itself,  even  when  not  otherwise 
suggested  and  without  respect  to  the  relations  of  the  parties  to  it.3 

x  Decatur  v.  Paulding,  14  Peters  497,  599,  Appx.,  10  L.  Ed.  559,  609;  Stevenson 
v.  Fain,  195  U.  S.  167,  49  L.  Ed.  142,  25  Sup.  Ct.  Rep.  6, 49. 

'  Downes  v.  Bidwell,  182  U.  S.  289,  21  Sup.  Ct.  Rep.  770,  45  L.  Ed.  1107;  Mayor 
v.  Cooper,  6  Wall.  247,  18  L.  Ed.  851. 

J  Toledo  Newspaper  Co.  v.  United  States,  237  Fed.  986  (C.  C.  A.  6th  Cir.) 
Morris  v.  Gilmer,  129  U.  S.  315-326,  9  Sup.  Ct.  Rep.  89,  92,  32  L.  Ed.  690; 
Louisville  &  N.  R.  R.  Co.  v.  Mottley,  211  U.  S.  149,  53  L.  Ed.  127;  Minnesota  v. 
Hitchcock,  185  U.  S.  373,  22  Sup.  Ct.  Rep.  650,  46  L.  Ed.  954 ;  Huntington  v.  Laidley, 
176  U.  S.  668,  20  Sup.  Ct.  Rep.  526,  44  L.  Ed.  630;  Great  Southern  Fire  Proof  Hotel 
Co.  v.  Jones,  177  U.  S.  449,  454,  20  Sup.  Ct.  Rep.  690,  44  L.Ed.  842;  Continental 
National  Bank  v.  Buford,  191  U.  S.  119,  120,  48  L.  Ed.  119;  Gilbert  v.  David,  235 
U.  S.  561,  59  L.  Ed.  360,  35bSup.  Ct.  Rep.  164;  Farmers  Oil  &  Guam  Co.  v.  Duck- 
worth Co.,  217  Fed.  362;  Miller  &  Lux,  Incorporated,  v.  East  Side  Canal  &  Irrigation 
Co.,  211  U.  S.  293, 53  L.  Ed.  189;  Mansfield,  etc.,  R.  R.  Co.  v.  Swan,  111  U.  S.  379, 

(5) 


Ch.  I)  FUNDAMENTALS   OF   APPEAL   AND   ERROR  §§  10-11 

When  an  appellate  tribunal  properly   acquires  jurisdiction 
over  a  case  it  must  retain  it  and  give  final  judgment  regardless 
of  any   change  of  circumstances  which  may  have  taken  place 
subsequent  to  the  appeal.1 
§  10.  Jurisdiction  defined. 

Jurisdiction  is  the  power  to  hear  and  determine  a  cause.2 

Jurisdiction  is  the  right  to  put  the  wheels  of  justice  in  motion, 
and  to  proceed  to  the  final  determination  of  the  cause  upon  the 
pleadings  and  evidence.3 

It  is  the  power  to  hear  and  determine  the  subject-matter  in 
controversy  between  parties  to  a  suit,  to  adjudicate  or  exercise 
any  judicial  power  over  them. 4 
§11.  Essentials  of  Appellate  jurisdiction. 

The  essential  criterion  of  appellate  jurisdiction  is  that  it  revises 
and  corrects  the  proceedings  in  a  cause  already  instituted;  and 
does  not  create  that  cause.5 

Jurisdiction  may  be  defined  to  be  the  right  to  adjudicate 
concerning  the  subject-matter  in  the  given  case.  To  constitute 
this  there  are  three  essentials.  First,  the  court  must  have  cog- 
nizance of  the  class  of  cases  to  which  the  one  to  be  adjudged 
belongs;  second,  the  proper  parties  must  be  present;  and  third, 


4  Sup.  Ct.  Rep.  510,  28  L.  Ed.  462;  Defiance  Water  Co.  v.  Defiance,  191  U.  S.  184, 
194,  24  Sup.  Ct.  Rep.  63,  48  L.  Ed.  140. 

1  Wilson  v.  United  States,  232  U.  S.  563,  58  L.  Ed.  728,  34  Sup.  Ct.  Rep.  563; 
Williamson  v.  United  States,  207  U.  S.  425,  52  L.  Ed.  278,  28  Sup.  Ct.  Rep.  163; 
Burton  v.  United  States,  196  U.  S.  283,  49  L.  Ed.  482,  25  Sup.  Ct.  Rep.  243;  Homer 
v.  United  States,  143  U.  S.  570,  36  L.  Ed.  266,  12  Sup.  Ct.  Rep.  522. 

3  Lamar  v.  U.  S.,  240  U.  S.,  60,  36  Sup.  Ct.  Rep.  225,  60  L.  Ed.  526;  Hine  v. 
Morse,  218  U.  S.  403,  54  L.  Ed.  1123;  Brougham  v.  Oceanic  Navigation  Co.  205 
Fed.  853;  United  States  v.  Arredondo,  31  U.  S.  (6  Peters)  691,  709;  Rhode  Island  v. 
Massachusetts,  37  U.  S.  (12  Peters)  718;  Grignon  v.  Astor,  43  U.  S.  (2  Howard)  338. 

3  Illinois  Central  R.  Co.  v.  Adams,  180  U.  S.  28, 21  Sup.  Ct.  Rep.  251, 45  L.  Ed.  410. 

4  Lamar  v.  U.  S.,  240  U.  S.  60,  35  Sup.  Ct.  Rep.  255,  60  L.  Ed.  52G;  Rhode  Island 
v.  Massachusetts,  37  U.  S.  (12  Peters)  657,  9  L.  Ed.  1233;  Riggs  v.  Johnson  County, 
6  Wall.  168, 18  L.  Ed.  768. 

s  Ex  parte  Watkins,  32  U.  S.  (8  Peters),  568;  Ex  parte  Virginia,  100  U.  S.  337, 
25  L.  Ed.  676;  Cohen  v.  Virginia,  6  Wheaton  264,  5  L.  ed.  357. 

(G) 


Ch.  I)  FUNDAMENTALS   OF  APPEAL  AND   ERROR  §§  12-14 

the  point  decided  must  be  in  substance  and  effect,  within  the  issue.1 
§  12.  Scope  of  jurisdiction  generally :  nature  of  judgment. 

The  power  to  hear  and  determine  a  cause  is  not  limited  to 
making  correct  decisions  but  includes  the  power  to  decide  wrongly 
as  well  as  rightly. 2  As  applied  to  a  particular  controversy  it  is 
the  power  to  hear  and  determine  the  subject-matter  of  that 
controversy.  And  by  this  is  meant  the  power  to  hear  and  deter- 
mine causes  of  the  class  to  which  the  particular  controversy 
belongs.  It  is  the  power  to  act  upon  the  general  question  in  its 
relation  to  the  facts  presented,  to  adjudge  whether  such  facts 
call  for  the  exercise  of  the  abstract  power. 3 
§  13.  Jurisdiction  not  affected  by  erroneous  ruling. 

The  merits  as  distinguished  from  jurisdiction  relate  to  the  duty 
of  the  court  in  a  given  case,  and  errors  in  respect  thereof,  whether 
by  mistake  of  law  or  of  fact,  do  not  invalidate  its  action.  Its 
action  cannot  be  collaterally  impeached,  but  stands  everywhere 
until  vacated  according  to  the  prescribed  procedure.  The  juris- 
dictional character  of  a  question  is  not  determined  by  its  impor- 
tance. Thus,  whether  a  suit  in  a  federal  court  against  a  state 
official  is  a  suit  against  the  state  contrary  to  the  eleventh  amend- 
ment is  not  jurisdictional,  but  relates  to  the  merits.4  And  even 
where  a  statute  says  certain  causes  of  action  "shall  not  be  enforced 
by  any  court,"  the  prohibition  may  not  go  to  the  jurisdiction.5 
§  14.  Authority  to  consider  jurisdiction  incident  to  general  power. 

A  court  must  as  an  incident  to  its  general  power  to  administer 
justice  have  authority  to  consider  its  own  right  to  hear  a  cause. 
But  the  mere  decision  by  a  court  that  it  has  such  right  when  it 

1  Reynolds  v.  Stockton,  140  U.  S.  254,  268;  11  Sup.  Ct.  Rep.  773,  35  L.  Ed.  464; 
In  re  Casey,  195  Fed.  322,  328. 

3  Lamar  v.  U.  S.,  240  U.  S.  60,  36  Sup.  Ct.  Rep.  255,  GO  L.  Ed.  526;  Ex  parte 
Moran,  144  Fed.  504,  604;  In  re  First  Nat.  Bank,  152  Fed.  64,  60;  Brougham  v. 
Oceanic  Steam  Navigation  Co.,  205  Fed.  857,  859. 

3  Brougham  v.  Oceanic  Steam  Navigation  Co.,  205  Fed.  857,  859  (C.  C.  A.) ; 
Old  Wayne  v.  McDonough,  204  U.  S.  8,  51  L.  Ed.  345,  27  Sup.  Ct.  Rep.  236. 

*  Scully  v.  Bird,  209  U.  S.  481,  28  Sup.  Ct.  597,  52  L.  Ed.  899. 

s  Fauntleroy  v.  Lum,  210  U.  S.  230,  28  Sup.  Ct.  641,  52  L.  Ed.  1039. 

(7) 


Ch.  I)  FUNDAMENTALS  OF  APPEAL  AND   ERROR  §§  15-18 

does  not  exist  does  not  give  it  authority.  A  court  by  moving  in  a 
cause  assumes  authority  but  the  assumption  does  not  confer  it. ■ 
§  15.  Judgment  without  notice  absolutely  void. 

A  sentence  of  a  court  pronounced  against  a  party  without 
hearing  him,  or  giving  him  an  opportunity  to  be  heard,  is  not  a 
judicial  determination  of  his  rights,  and  is  not  entitled  to  respect 
in  any  other  tribunal.  Until  notice  is  given,  the  court  has  no  juris- 
diction in  any  case  to  proceed  to  judgment,  whatever  its  authority 
may  be,  by  the  laws  of  its  organization,  over  the  subject-matter. 2 
§  16.  Jurisdiction  over  subject-matter  conferred  by  authority. 

By  jurisdiction  over  the  subject-matter  is  meant  the  nature  of 
the  cause  of  action  and  of  the  relief  sought;  and  this  is  conferred 
by  the  sovereign  authority  which  organizes  the  court,  and  is  to  be 
sought  for  in  the  general  nature  of  its  powers,  or  in  authority 
specially  conferred.3 
§  17.  Jurisdiction  over  person  obtained  by  process. 

Jurisdiction  over  the  person  is  obtained  by  service  of  process, 
or  by  voluntary  appearance  of  the  party  in  the  progress  of  the 
cause. 4  Where  srvice  of  process  was  obtained  by  fraud,  the  Court 
was  without  jurisdiction,  as  held  in  the  recent  case  of  Blandin 
v,  Ostrander,  decided  by  C.  C.  A.  Second  Circuit  on  January  9, 
1917. 
§  18.  Process  in  rem. 

Jurisdiction  against  the  person  is  acquired  only  by  service  of 
process;  but  where  the  claim  is  against  property  within  the  juris- 


1  Brougham  v.  Oceanic  Navigation  Co.,  205  Fed.  857,  859  (C.  C.  A.). 

*  Old  Wayne  v.  McDonough,  204  U.  S.  9,  27  Sup.  Ct.  Rep.  236,  58,  51  L.  Ed.  345; 
Windsor  v.  McVeigh,  93  U.  S.  274,  277,  23  L.  Ed.  914;  Hovey  v.  Elliott,  167 
U.  S.  409, 42  L.  Ed.  215, 17  Sup.  Ct.  Rep.  841 ;  Simon  v.  Craft,  182  U.  S.  427,  45  L. 
Ed.  1165,  21  Sup.  Ct.Rep.  836. 

i  U.  S.  v.  New  York  Co,,  216  Fed.  61  (CCA.  2d  Cir.);  Cooper  v.  Reynolds,  77 
U.  S.  (10  Wall.)  308, 316, 19  L.  Ed.  931;  Pac.  Coast  Co.  v.  Bankcroft  Co.  94Fed.  185. 

iPennoyer  v.  Neff,  95  U.  S.  732,  24  L.  Ed.  565;  Cooper  v.  Reynolds,  supra; 
Kendall  v.  U.  S.  12  Peters  524,  9  L.  Ed.  1181;  Harris  v.  Hardeman,  14  How.  334; 
Mexican  Cent.  R.  Co.  v.  Pinkney,  149  U.  S.  194, 209,  37  L.  Ed.  699,  13  Sup.  Ct.  Rep. 
859. 

(8) 


Ch.  I)  FUNDAMENTALS   OF  APPEAL  AND   ERROR  §§  19~21 

diction  of  the  court,  personal  service  of  the  owner  or  possessor  is 
not  required. r 

§  19.  Jurisdiction  over  subject-matter  cannot  be  conferred  by 
consent. 

Silence  of  counsel  does  not  waive  the  question  of  jurisdiction, 
nor  would  the  express  consent  of  the  parties  give  the  court  a 
jurisdiction  which  was  not  warranted  by  the  Constitution  and 
laws.  It  is  the  duty  of  every  court  of  its  own  motion  to  inquire 
into  the  matter  irrespective  of  the  wishes  of  the  parties,  and  to  be 
careful  that  it  exercises  no  powers  save  those  conferred  by  law. 
Consent  may  waive  an  objection  so  far  as  respects  the  person,  but 
it  cannot  invest  a  court  with  jurisdiction  which  it  does  not  by  law 
possess,  over  the  subject-matter. 2 
§  20.  Organic  power  of  the  Court.    Jurisdiction  must  be  retained. 

Within  its  limitations  respecting  subject-matter,  a  Federal 
court  is  a  court  of  general  jurisdiction;  and  if  the  organic  power  to 
hear  the  controversy  exists,  it  is  immaterial  how  or  when  the 
parties  get  into  court.  Jurisdiction,  having  once  attached,  must 
be  retained.  It  must  not  be  lost  pending  the  cause.3 
§21.  Certain  facts  jurisdictional. 

There  is  in  every  proceeding  of  a  judicial  nature  one  or  more 
facts  which  are  strictly  jurisdictional,  and  the  existence  of  which 
is  necessary  to  the  validity  of  the  proceedings,  and  without  which 
the  action  of  the  court  or  judge  is  a  nullity,  as  the  pendency  of  the 
action  and  service  of  process  on  defendant,  a  subject-matter 
'within  the  power  of  the  particular  court  or  judge  to  hear  and 
determine  as  shown  by  pleadings  or  a  petition. 4 

1  Louisville  &  R.  R.  Co.  v.  Schmidt,  177  U.  S.  230, 44  L.  Ed.  747,  20  Sup.  Ct.  Rep. 
620;  Boswell  v.  Otis,  U.  S.  (9  How.)  336,  13  L.  Ed.  164;  Pennoyer  v.  Neff,  95  U.  S. 
714,  25  L.  Ed.  565;  Mexican  Cent.  R.  Co.  v.  Pinkney,  149  U.  S.  194,  209,  13  Sup.  Ct. 
Rep.  859,  37  L.  Ed.  699. 

•  Minnesota  v.  Hitchcock,  185  U.  S.  373,  382,  22  Sup.  Ct.  Rep.  650,  46  L.  Ed. 
954. 

»  Toledo,  St.  L.  &  W.  R.  Co.  v.  Perenchio,  205  Fed.  472,  476  (C.  C.  A.) 

*  Noble  v.  Union  River  Logging  R.,  147  U.  S.  165,  173,  13  Sup.  Ct.  Rep.  271, 
37  L.  Ed.  123;  In  re  Casey,  195  Fed.  322,  328. 

(9) 


Ch.  I)  FUNDAMENTALS   OF  APPEAL  AND   ERROR  §§  22-23 

§  22.     Quasi  jurisdictional  facts. 

There  is  a  class  of  facts  which  are  termed  quasi  jurisdictional, 
which  are  necessary  to  be  alleged  and  proved  in  order  to  sec  the 
machinery  of  the  law  in  motion,  but  which,  when  properly  alleged 
and  established  to  the  satisfaction  of  the  court,  cannot  be  attacked 
collaterally.  With  respect  to  these  facts,  the  finding  of  the  court 
is  as  conclusively  presumed  to  be  correct  as  its  finding  with  respect 
to  any  other  matter  in  issue  between  the  parties.  Instances  of 
these  are  the  allegations  and  proof  of  the  requisite  of  diversity 
of  citizenship,  or  the  amount  in  controversy  in  a  Federal  court 
which,  when  found  by  such  court,  cannot  be  questioned  colla- 
terally1; the  existence  of  amount  of  debt  in  an  involuntary 
bankruptcy2;  the  fact  that  there  is  insufficient  personal  pro- 
perty to  pay  the  debts  of  a  decedent,  when  application  is 
made  to  sell  his  real  estate3;  the  fact  that  one  of  the  heirs  of 
an  estate  had  reached  his  majority,  when  the  act  provided  that 
the  estate  should  not  be  sold  if  all  the  heirs  were  minors4;  and 
others  of  a  kindred  nature,  where  the  lack  of  jurisdiction  does 
not  go  to  the  subject-matter  or  the  parties,  but  to  the  preliminary 
facts  necessary  to  be  proven  to  authorize  the  court  to  act. s 
§  23.    Decree  outside  of  issues,  invalid. 

A  decree  in  equity,  which  is  entirely  outside  of  the  issues  raised 
in  the  record,  is  invalid,  and  will  be  treated  as  a  nullity,  even  in  a 
collateral  proceeding. 6 

1  Noble  v.  Union  River  Logging  R.,  147  U.  S.  165,  173,  13  Sup.  Ct.  Rep.  271, 
37  L.  Ed.  123;  Des  Moines  Nav.  Co.  v.  Iowa  Homestead  Co.,  123  U.  S.  552,  8  Sup.  Ct. 
Rep.  217,  31  L.  Ed.  202;  In  re  Sawyer,  124  U.  S.  200,  220,  8  Sup.  Ct.  Rep.  482,  31  L. 
Ed.  402. 

2  Michaels  v.  Post,  88  U.  S.  (21  Wall.)  398,  22  L.  Ed.  520. 

3  Comstock  v.  Crawford,  70  U.  S.  (3  Wall.)  396,  18  L.  Ed.  34;  Grignon  v.  Astor, 
43  U.  S.  (2  How.)  319,  11  L.  Ed.  283;  Florentine  v.  Barton,  69  U.  S.  (2  Wall.)  210, 
17  L.  Ed.  783. 

4  Thompson  v.  Tolmie,  27  U.  S.  (2  Peters),  157,  7  L.  Ed.  381. 

s  Hudson  v.  Guestier,  7  U.  S.  (6  Cranch)  281,  3  L.  Ed.  224;  Ex  parte  Watkins,  28 
U.  S.  (3  Teters)  193,  7  L.  Ed.  650. 

«  Reynolds  v.  Stockton,  140  U.  S.  254,  266;  11  Sup.  Ct.  Rep.  773,  35  L.  Ed. 
464,  approving  Munday  v.  Vail,  34  N.  J.  Eq .  418. 

(10) 


Ch.  I)  FUNDAMENTALS   OF  APPEAL  AND  ERROR  §§  24-25 

§  24.  Power  to  render  the  particular  judgment ;  nature  of  judgment. 

There  must  be  jurisdiction  to  give  the  judgment  rendered,  as 
well  as  to  hear  and  determine  the  cause.    Every  act  of  a  court 
beyond  its  jurisdiction  is  void.  * 
§  25.  Excessive  penalty  annuls  judgment. 

If  a  magistrate,  having  authority  to  fine  for  assault  and  battery 
only,  should  sentence  the  offender  to  be  imprisoned  in  the  peni- 
tentiary, or  to  suffer  the  punishment  prescribed  for  homicide,  his 
judgment  would  be  as  much  a  nullity  as  if  the  preliminary  juris- 
diction to  hear  and  determine  had  not  existed.1 
§  26.  Effect  of  want  of  jurisdiction. 

The  jurisdiction  of  a  court  depends  upon  its  right  to  decide 
a  case  and  never  upon  the  merits  of  its  decision.  The  distinction 
between  want  of  jurisdiction  and  error  is  clear.  When  a  court 
makes  an  order  in  a  cause  over  which  it  has  no  jurisdiction,  it  is 
a  nullity.  No  one  is  bound  to  obey  it  or  is  liable  for  disobeying 
it.  Similarly  if  a  court  have  jurisdiction  of  a  cause  and  yet  make 
an  order  in  it  beyond  its  power,  the  order  is  void.  In  one  case 
there  is  action  without  authority;  in  the  other,  action  in  excess 
of  authority. 3 
§  27.  Error  does  not  avoid  jurisdiction. 

But  if  a  court  have  jurisdiction  to  make  an  order  it  must  be 
obeyed  however  wrong  it  may  be.  Error  must  be  corrected  by 
appeal,  not  by  disobedience.4 

§  28.  Full  faith  and  credit  will  not  be  accorded  where  no  juris  ■ 
diction. 

Full  faith  and  credit  will  not  be  accorded  to  a  judgment  or 

1  Cornett  v.  Williams  20  Wall.  226,  22  L.  Ed.  254;  Windsor  v.  McVeigh,  93 
U.  S.  274,  23  L.  Ed.  914;  Ex  parte  Reed,  100  U.  S.  13,  23,  25  L.  Ed.  538;  Standard 
Oil  v.  Missouri,  224  U.  S.  270,  2S2;  Earle  v.  McVeigh,  91  U.  S.  503,  507,  23  L.  Ed. 
398;  Harris  v.  Hardeman  55  U.  S.  (14  Howard)  234,  339,  14  L.  Ed.  444. 

■  Ex  parte  Reed,  100  U.  S.  13,  25,  L.  Ed.  538. 

*  Ex  parte  Watkins,  32  U.  S.  (8  Peters)  568,  572;  Ex  parte  Fiske,  113  U.  S.  713, 
5  Sup.  Ct.  Rep.  724,  28  L.  Ed.  1117;  In  re  Sawyer,  124  U.  S.  200,  8  Sup.  Ct.  Rep. 
482,  31  L.  Ed.  402;  Brougham  v.  Oceanic  Steam  Navigation  Co.,  205  Fed.  857,  860. 

4  Elliott  v.  Piersol,  1  Peters  328,  340,  7  L.  Ed.  164;  Brougham  v.  Oceanic  Steam 
Navigation  Co.,  205  Fed.  857,  860  (C.  C.  A.). 

(ID 


Ch.  I)  FUNDAMENTALS   OF  APPEAL  AND   ERROR  §  29 

decree  rendered  by  a  court  having  no  jurisdiction  of  the  parties 
or  the  subject-matter,  or  of  the  res  in  proceedings  in  rem.    The 
jurisdiction  of  the  court  may  be  inquired  into.1 
29.  General  remarks. 

Courts  cannot  shirk  a  plain  duty  and  must  entertain  jurisdic- 
tion when  conferred  by  law.  As  was  said  by  Chief  Justice 
Marshall  in  Cohen  v.  Virginia,  6  Wheaton  264,  5  L.  ed.  257 : 

"It  is  most  true  that  this  court  will  not  take  jurisdiction  if  it 
should  not ;  but  it  is  equally  true  that  it  must  take  jurisdiction  if 
it  should.  The  judiciary  cannot,  as  the  Legislature  may,  avoid  a 
measure  because  it  approaches  the  confines  of  the  Constitution. 
.  .  .  We  have  no  more  right  to  decline  the  exercise  of  jurisdic- 
tion which  is  given,  than  to  usurp  that  which  is  not  given.  The 
one  or  the  other  would  be  treason  to  the  Constitution.  Questions 
may  occur  which  we  would  gladly  avoid;  but  we  cannot  avoid 
them.  All  we  can  do  is  to  exercise  our  best  judgment,  and  con- 
scientiously to  perform  our  duty."2 

*  Thompson  v.  Whitman  18  Wall.  547,  21  L.  Ed.  897;  Reynolds  v.  Stockton,  140 
U.  S.  254, 11  Sup.  Ct.  Rep.  773,  35  L.  Ed.  464;  Bigelow  v.  Old  Dominion  Copper  Co., 
225  U.  S.  134;  Thompson  v.  Thompson,  226  U.  S.  551,  560;  Haddock  v.  Haddock, 
201  U.  S.  562,  50  L.  Ed.  867,  26  Sup.  Ct.  Rep.  525. 

a  Quoted  and  approved  in  ex  parte  Young,  209  U.  S.  123. 


(12) 


Ch.  II)    FEDERAL  DECISIONS — HOW  AND  WHEN  REVIEWABLE 


CHAPTER  II 


Federal  Decisions — How  and  When  Reviewable 


SBC. 
1. 

2. 
3. 

4. 
5. 


6. 


8. 

9. 

10. 

11. 

12. 

13. 
14. 
15. 

16. 

17. 
18. 

19. 

20. 

21. 


Sec. 

Constitutional  provisions.  22. 

Courts  of  law  and  equity  denned. 

Transfer  of  causes. 

State  procedure  not  applicable.  23. 

Distinction     between    appeal    and      24. 
error     entertained     in      Federal 
Court.  25. 

General  Rules  governing  review. 

(a)  Review  by  appeal.  26. 

(b)  By  writ  of  error.  27. 
Mistake  in  choice  of  remedy  be- 
tween appeal  and  error  no  longer      28. 
fatal.     Act  of  Sept.  6, 1 916.  29. 

When  advisable   to    use    both    re- 
medies. 30. 

Contempt  proceedings  reviewable  by 

writ  of  error.  31. 

Interlocutory  contempt  orders  not      32. 
reviewable. 

When     order     in     contempt     not 
reviewable.  33. 

Punitive     order     in     contempt    a 
criminal  judgment.  34. 

Contempt  a  specific  offense. 

When  order  is  punitive.  35. 

Criminal       cases — Judgments       re- 
viewed by  writ  of  error.  36. 

Writ  of  error  to  review  judgment  in 
mandamus  proceedings.  37. 

Judgments  under  Pure  Food  Law. 

Decisions   in    Interstate  Commerce       38. 
Matters.  39. 

Order  setting  aside  judgment  after      40. 
term. 

Necessity  for  final  determination —      41. 
Jurisdictional  prerequisite. 

Doubt  resolved  against  finality. 


What  are  final  judgments — Final 
judgment  or  decree  must 
terminate  litigation. 

Orders  at  foot  of  decree  may  be  final. 

When  reference  to  master  does  not 
affect  finality. 

Decree  pro  confesso  final,  but  re- 
view limited. 

Judgments  and  decrees  held  final. 

Orders  refusing  intervention  final 
and    appealable. 

Order  limiting  liability  in  admiralty. 

Habeas  corpus  orders  final  and 
appealable. 

Appealable  orders  on  sales  and 
resale. 

Appeal  from  order  setting  aside  sale. 

Judgment  or  decree  not  final  when 
motion  to  set  aside  pending. 
(a)  A  decree  in  alter  native  not  final. 

Decrees  and  orders  held  not  final — 
when. 

When  review  must  await  further 
proceedings. 

On  appeal  in  equity,  law  and  fact 
reviewed. 

Concurrent  findings  of  fact  will  not 
be  disturbed. 

Rule  not  applicable  where  no 
opinion  is  filed. 

Rule  similar  in  patent  matters. 

Review  of  master's  report. 

Master's  findings — How  far  con- 
clusive. 

Orders  of  the  Interstate  Commerce 
Commission  are  not  reviewable  in 
any    court    except    for    a    gross 

(13) 


Ch.   II)    FEDERAL  DECISIONS — HOW  AND  WHEN  REVIEWABLE  §§  1~2 

Sec.  Sec. 

abuse    of    power    or    an    uncon-  4G.  Stipulated   judgments   and   decrees 
stitutional   invasion  of    property  not  appealable, 

rights.  47.  Naturalization  cases. 

42.  Exception  to  the  above  rule.  48.  Decisions  Affecting  Attorneys — 

43.  Moot    questions    not    reviewable —  .Reviewable  by  mandamus. 

What  questions  are  moot.  49.  Review  of  disbarment — Remedy  by 
41.  Questions  of  costs  not  reviewable,  if  mandamus  exclusive. 

no  other  controversy.  50.  Supervisory  jurisdiction  of  the 
45.  Extrinsic  evidence  to  prove  question  Supreme  Court. 

moot.  51.  Rights  of  attorneys. 

§  i.  Constitutional  provisions. 

The  Seventh  Amendment  to  the  Constitution  of  the  United 
States  provides : 

"  No  fact  tried  by  a  jury  shall  be  otherwise  reexamined  in  any 
Court  of  the  United  States  than  according  to  the  rules  of  the 
common  law." 

And  in  Section  2  of  Article  III.  of  the  Constitution  of  the  United 
States  it  is  laid  down  that  the  judicial  powei  of  the  United  States 
shall  extend  to  all  cases,  both  in  law  and  i?i  equity.  The  Constitution 
of  the  United  States  having  thus  expressly  recognized  the  distinc- 
tion between  the  jurisdiction  of  courts  of  law  and  courts  of  equity,  * 
Congress  is  without  power  to  abolish  it, 2  and  the  courts  of  the 
United  States  must  maintain  separately  the  two  systems  of 
jurisprudence  and  control  ^he  procedure  in  the  national  courts 
in  accordance  with  the  well-settled  principles  of  law  governing 
the  jurisdiction  and  power  of  courts  of  equity  as  distinguished 
from  courts  of  law. 3 
§  2.  Courts  of  law  and  equity  denned. 

As  a  general  proposition,  courts  of  equity  are  those  which 
have  jurisdiction  in  cases  where  the  parties  have  only  equit- 

1  Seventh  Amendment  to  the  Constitution  of  United  States ;  Eleventh  Amend- 
ment to  the  Constitution  of  United  States. 

*  State  of  Pennsylvania  v.  Wheeling  &  B.  Bridge  Co.,  18  How.  460,  15  L.  Ed.  450; 
Mississippi  Mills  v.  Cohn,  150  U.  S.  205, 37  L.  Ed.  1053,  14  Sc.  75. 

3  Sec.  276  Fed.  Jud.  Code;  Lantry  vs.  Wallace,  182  U.  S.  550  45  L.  1225,  21  Sc. 
878;  Green  vs.  Mills,  69  Fed.  952,  opinion  per  Fuller,  J.  Montelibano  vs.  La 
Compania  Tobacos,  241  U.  S.  455,  36  Sc.  617,  60  L.  Ed.  1099. 

(14) 


Ch.  II)    FEDERAL  DECISIONS — HOW  AND  WHEN  REVIEWABLE  §  3 

able  rights,1  while  courts  of  law  are  courts  having  jurisdic- 
tion of  actions  and  suits  at  law  and  dealing  with  legal  titles 
and  remedies  as  distinguished  from  equitable  titles  and  re- 
medies. 

To  give  effect  to  the  above  constitutional  provisions  and 
make  the  division  of  the  two  systems  of  jurisprudence  more  com- 
plete, Congress  has  from  time  to  time  passed  laws  providing  that 
"Suits  in  equity  shall  not  be  sustained  in  any  court  of  the  United 
States  in  any  case  where  a  plain,  adequate,  and  complete  remedy 
may  be  had  at  law."2 
§  3.  Transfer  of  causes. 

Up  to  the  time  of  the  promulgation  of  the  equity  rules  on 
November  4,  1912,  no  power  existed  in  a  Court  of  Equity  of  the 
United  States  to  transfer  a  cause  erroneously  commenced  on 
the  equity  side  of  the  court  to  the  common  law  docket,  but  now  the 
law  is3  that  if  at  any  time  a  suit  commenced  in  equity  should  have 
been  brought  on  the  law  side  of  the  court,  or  vice  versa,  it  is  the 
duty  of  the  court,  instead  of  dismissing  the  suit,  to  transfer  the 
cause  to  the  law  side  and  be  there  proceeded  with,  with  only  such 
alteration  in  the  pleadings  as  shall  be  essential.4  Equally  the 
law  is  now  that  a  mistake  in  selecting  the  form  or  mode  of 
review  will  not  ordinarily  be  cause  for  dismissing  the  appellate 
proceeding. s 

The  provisions  of  the  U.  S.  Circuit  Court  of  Appeals  Act  of 
March  3,  1891,  did  not  change  the  mode  of  procedure  and  the 
distinction  between  appeals  in  equity  and  writs  of  error  in  common 
law  cases  remained. 6 

*  Engbert  L.  Dictionary. 

a  Sect.  267  of  Federal  Judicial  Code,  1911;  Equitable  Life  Ins.  Co.  v.  Brown,  213 
U.  S.  25,  53  L.  Ed.  682,  23  Sc.  404. 

J  Equity  Rule  22,  in  force  January  1,  1913. 

*  Act  of  Congress  of  March  3,  1915,  amending  Sect.  274  of  the  Judicial  Code  of 
1911. 

s  For  new  Act  see  §  7  of  this  Chapter. 

6  Rice  v.  Ames,  180  U.  S.  371,  45  L.  Ed.  577,  21  Sc.  406;  Fisher  v.  Baker,  203 
U.  S.  174,  51  L.  Ed.  142,  27  Sc.  135. 

(15) 


Ch.  II)    FEDERAL  DECISIONS — IIOW  AND  WHEN  REVIEWABLE  §§  4-7 

§  4.  State  procedure  not  applicable. 

State  statutes  relating  to  the  granting  of  new  trials  or  to 
appellate  procedure  are  not  applicable.1 

§  5.  Distinction  between  appeal  and  error  exists  in  Federal 
Court. 

In  the  Courts  of  the  State  of  New  York,  by  express  command 
of  the  Code  (Sec.  1293),  all  cases  are  reviewable  by  appeal  only. 
But  in  the  Courts  of  the  United  States,  the  distinction  between 
appeals  and  writs  of  error  still  exists. 

§  6.  General  rules  governing  review — Common  law  judgments 
and  decrees  in  equity — How  reviewed. 

(a)  In  view  of  the  distinction  between  common  law  and 
equitable  actions,  the  rule  is  that  all  common  law  judgments  are 
reviewable  only  by  writ  of  error2  and  the  review  is  limited  solely  to 
points  of  law.3 

(b)  All  judgments  and  decrees  in  equity  are  reviewable  by 
appeal  only. 4 

§  7.  Mistake  in  choice  of  remedy  between  appeal  and  error  no 
longer  fatal.  Act  of  Sept.  6,  1916. 
The  old  rule  of  dismissing  the  proceeding  in  the  Appellate 
Court  because  of  the  selection  of  the  wrong  method  for  review 
has  been  abolished  by  the  recent  Act  of  Congress  passed  Septem- 
ber 6,  1916,  providing  that  "No  Court  having  power  to  review  a 
judgment  or  decree  rendered  or  passed  by  another  shall  dismiss  a 
writ  of  error  solely  because  an  appeal  should  have  been  taken,  or 

1  Bronson  v.  Schulten,  104  U.  S.  410,  417,  26  L.  Ed.  797,  800;  United  States  v. 
Mayer,  235  U.  S.  55,  59  L.  Ed.  129,  35  Sc.  16. 

»  Behm,  Meyer  &  Co.  v.  Campbell,  205  U.  S.  407,  51  L.  Ed.  859,  27  Sc.  502; 
Walker  v.  Duville,  12  Wall.  440,  20  L.  Ed.  429;  United  States  v.  Hailcy,  118  U.  S. 
233,  30  L.  Ed.  173,  6  Sc.  1049;  Robert  v.  Great  Northern  Ry.,  138  Fed.  711  (C.  C. 
A.) ;  Files  v.  Brown,  124  Fed.  133,  59  C.  C.  A.  403. 

3  Atlantic  C,  L.  R.  Co.  v.  Thompson  211  F.  889-128  C.  C.  A.  267;  Chicago  Bur- 
lington &  Quincy  R.  R.  Co.  v.  Chicago,  100  U.  S.  246,  41  L.  Ed.  988,  17  Sc.  581; 
Dower  v.  Richards,  151  U.  S.  663,  38  L.  Ed.  305,  14  Sc.  452. 

4  Carin  v.  Insular  Government,  212  U.  S.  449,  53  L.  Ed.  594,  29  Sc.  334;  Files  v. 
Brown,  124  Fed.  133,  59  C.  C.  A.  403;  Frankfort  v.  Deposit  Bank,  127  Fed.  814,  89 
C.  C.  A.  61,  161  Fed.  808. 

(16) 


Ch.    II)    FEDERAL  DECISIONS — HOW  AND  WHEN  REVIEWABLE  §§  8-9 

dismiss  an  appeal  solely  because  a  writ  of  error  should  have  been 
sued  out,  but  when  such  mistake  or  error  occurs  it  shall  disregard 
the  same  and  take  the  action  which  would  be  appropriate  if  the 
proper  appellate  procedure  had  been  followed. "  (§  1649a,  Act 
Sept.  6,  1916,  Chap.  4,  §4). 
§  8.  When  advisable  to  use  both  remedies. 

Notwithstanding  the  liberal  rule  provided  by  the  recent  Act 
of  Congress,  it  is  possible  that  the  Appellate  Tribunal  might  be 
prevented  from  giving  the  desired  relief  by  reason  of  the  form  or 
state  of  the  record  brought  to  it  for  review. 

Accordingly,   it   is   advisable  in   difficult   cases   to  proceed 
by  both  methods,  i.  e.,  by  appeal  and  error,  which  is  per- 
missible. * 
§  9.  Contempt  proceedings  reviewable  by  writ  of  error. 

Judgments  and  orders  finding  a  party  to  be  in  contempt  of 
court,  although  made  in  the  course  of  civil  proceedings,  are  re- 
viewable in  the  U.  S.  Circuit  Court  of  Appeals  on  a  writ  of 
error,  where  the  object  of  the  order  is  punitive  and  criminal  in 
character.3 

An  order  imposing  a  fine  on  an  attorney  for  failure  to  answer 
questions  before  a  grand  jury  is  reviewable  only  by  writ  of 
error.3 

A  judgment  in  criminal  contempt  committed  in  the  course  of  a 
bankruptcy  proceeding  is  reviewable  by  writ  of  error. 4 

In  view  of  the  uncertainty  in  classifying  the  contempt  charge, 

*  Haapi  v.  Brown,  239  U.  S.  502,  60  L.  Ed.  407,  36  S.  C.  201 ;  Grant  v.  U.  S.,  227 
U.  S.  74,  57  L.  Ed.  423,  33  S.  C.  190;  Lockman  v.  Lane,  132  Fed.  3,  65  C.  C.  A.  621; 
Hubbard  v.  Worcester  Art  Museum,  196  Fed.  871,  116  C.  C.  A.  435;  see  Lamar  v. 
U.  S.,  241  U.  S.,  p.  103 ;  Hurst  v.  Hollingsworth,  94  U.  S.  Ill,  24  L.  Ed.  31 ;  Plymouth 
Gold  Ming.  Co.  v.  Amadore  Canal  Co.,  118  U.  S.  264,  6  S.  C.  1034,  30  L.  Ed.  232; 
Smith  v.  Whitney,  116  U.  S.  167,  29  L.  Ed.  601,  6  S.  C.  570. 

*  Re  Merchants  Stock  &  Grain  Co.  223  U.  S.  639,  642,  56  L.  Ed.  584, 32  S.  C.  339; 
Gompers  v.  Buck  Store  &  Range  Co.,  221  U.  S.  418,  55  L.  Ed.  797,  31  S.  C.  492;  In 
re  Christensen  Engineering  Co.,  194  U.  S.  458,  48  L.  Ed.  1072,  24  S.  C.  729;  Bank  v. 
Hawkins,  190  Fed.  924,  111  C.  C.  A.  514. 

3  Grant  v.  U.  S.  227,  U.  S.  74,  57  L.  Ed.  423,  33  S.  C.  190. 

4  Freed  v.  Central  Trust  Co.  of  Illinois,  215  Fed.  873  (C.  C.  A.  7th  Circuit)* 

(17) 


Ch.  II)    FEDERAL  DECISIONS — HOW  AND  WHEN  REVIEWABLE      §§  10-14 

a  writ  of  error  will  sometimes  be  treated  as  a  petition  to  revise  to 

avoid  injustice.1 

§  10.  Interlocutory  contempt  orders  not  reviewable. 

Ccntempt  orders  which  are  purely  remedial  as  between  the 
parties  to  the  suit,  remain  interlocutory  and  are  not  reviewable, 
except  on  appeal  from  the  final  decree. a 
§  n.  YiHien  order  in  contempt  not  reviewable. 

An  order  complained  of  which  is  part  of  the  original  suit 
cannot  be  brought  up  for  review  by  writ  of  error.  Errors  in 
equity  suits  can  only  be  corrected  in  the  court  on  appeal,  and  that 
after  a  final  decree.  An  order  which  is  merely  a  part  of  the  civil 
proceedings  is  interlocutory. 

If  the  proceeding,  which  was  for  contempt,  was  independent 
of  and  separate  from  the  original  suit,  it  cannot  be  reexamined 
by  either  writ  of  error  or  appeal. 3 
§  12.  Punitive  order  in  contempt  a  criminal  judgment. 

An  order  decreeing  that  "he  pay  to  the  United  States  a  fine 
of  $200.00  and  the  costs,  and  that  he  stand  committed  to  the 
custody  of  the  marshal  until  said  fine  and  costs  shall  have  been 
paid"  is  in  effect  a  criminal  judgment  and  so  reviewable  by  writ 
of  error.4 
§  13.  Contempt  a  specific  offense. 

Contempt  of  court  is  a  specific  criminal  offense.     The  im- 
position of  a  fine  is  a  judgment  in  a  criminal  case. s 
§  14.  When  order  is  punitive. 

Where  the  order  made  against  the  accused  is  punitive,  it  is  a 


1  Freed  v.  Central  Trust  Co.  of  111.,  215  Fed.  873  (C.  C.  A.  7th  Circuit). 

*  Hultberg  v.  Anderson,  214  Fed.  349;  Bessette  v.  W.  B.  Conkey  Co.,  194  U.  S. 
324,  325,  326,  24  Sup.  Ct.  665,  48  L.  Ed.  997;  In  re  Merchants'  S.  &  G.  Co.,  223  U.  S. 
639,  32  Sup.  Ct.  339,  56  L.  Ed.  584. 

J  Hayes  v.   Fisher,    102   U.    S.    121;    Bessette  v.    Conkey  Co.   supra. 

4  Sona  v.  Aluminum  Casting  Co.,  214  F.  936,  131  C.  C.  A.  232,  supra;  Brown  v. 
Detroit  Trust  Co.,  193  Fed.  623;  Bessette  v.  Conkey,  194  U.  S.  324,  24  Sup.  Ct.  Rep. 
665,  48  L.  Ed.  997. 

«  Stuart  v.  Reynolds,  204  Fed.  715;  In  re  Frankel,  184  Fed.  542. 

(18) 


Ch.  II)      FEDERAL  DECISIONS — HOW  AND  WHEN  REVIEWABLE    §§  15-19 

final  judgment  in  its  nature  and  reviewable  on  writ  of  error  with- 
out awaiting  such  final  decree.1 
§  15.  Criminal  cases.    Judgments  reviewed  by  writ  of  error. 

Judgment  of  conviction  in  a  criminal  case  is  reviewable  only 
by  writ  of  error. 3 
§  16.  Writ  of  error  to  review  judgment  in  mandamus  proceedings. 

A  writ  of  eiror  and  not  appeal  is  the  proper  method  of  securing 
a  review  of  a  judgment  of  a  Federal  court  granting  or  refusing  a 
writ  of  mandamus.3 
§  17.  Judgments  under  Pure  Food  Law. 

In  judgments  under  Food  and   Drug  Act  §  10,   review  is 
obtained  by  writ  of  error  only.4 
§  1 8.  Decisions  in  Interstate  Commerce  Matters. 

Writ  of  error  and  not  appeal  is  the  proper  method  to  bring  up 
for  review,  the  correctness  of  the  decision  of  a  U.  S.  District  Court 
requiring  carriers  to  submit  their  books  and  papers  for  examina- 
tion to  the  Interstate  Commerce  Commission. s 
§  19.  Order  setting  aside  judgment  after  term. 

An  order  made  after  term  setting  aside  a  judgment  at  law 
dismissing  the  suit  and  restoring  case  on  the  docket  is  reviewable 
by  writ  of  error  on  a  question  of  jurisdiction  of  the  trial  court  in 
making  such  order.6    An  order  made  after  term  in  a  criminal 

1  Gompers  v.  Buck  Stove  and  Range  Co.,  221  U.  S.  418,  31  Sup.  Ct.  Rep.  492, 
55  L.  Ed.  797;  Phillips,  S.  T.,  Co.  v.  Amalgamated  Ass'n  of  I.  S.  &  T.  W.,  208  Fed. 
335;  In  re  Merchants'  Stock  Co.,  supra;  Bessette  v.  Conkey  Co.,  194  U.  S.  324,  supra; 
In  re  Christensen  Engineering  Co.,  194  TJ.  S.  458, 48  L.  Ed.  1072, 24  S.  C.  729 ;  Grant 
v.  United  States,  227  U.  S.  74,  76,  57  L.  Ed.  423,  33  S.  C.  190. 

3  Grant  v.  U.  S.,  227  TJ.  S.  74,  supra;  Bucklein  v.  United  States,  159  U.  S.  680,  40 
L.  Ed.  304,  16  S.  C.  182;  Bessette  v.  Conkey  Co.,  supra.  For  appeal  by  Government 
see  Chap.  III.  §  22. 

J  United  States  v.  Louisville  &  Nashville  R.  R.  Co.,  236  U.  S.  318,  59  L.  Ed.  598, 
45  S.  C.  363. 

1  Lexington  Mill  &  El.  Co.  v.  U.  S.,  202  Fed.  615, 121  C.  C.  A.  23 ;  U.  S.  v.  Lexing- 
ton Mill  &  Elev.  Co.,  same  case  affirming  202  F.  615,  232  U.  S.  399,  58  L.  Ed.  653, 
34  S.  C.  337. 

s  United  States  v.  Louisville  &  N.  R.  R.  Co.,  236  U.  S.  318,  59  L.  Ed.  598,  35  S.  C. 
363. 

6  Hamilton  Coal  Co.  v.  Watts  (C.  C.  A.  2d  Cir.)  232  Fed.  832.    ' 

(19) 


Ch.  II)    FEDERAL  DECISIONS — HOW  AND  WHEN  REVIEWABLE     §§  20-22 

case  affecting  the  judgment  is  also  reviewable  on  the  question  of 
jurisdiction. x 

§  20.  Necessity    for    final    determination — jurisdictional    pre- 
requisite. 

In  order  to  obtain  a  review  in  the  Supreme  Court  or  in  the 
United  States  Circuit  Court  of  Appeals,  it  is  imperative  that 
the  judgment  or  decree  appealed  from  be  final  in  its  nature." 
§21.  Doubt  resolved  against  finality. 

Every  doubt  is  resolved  against  finality  of  a  judgment.3 

Matters    within  the    pleadings   retained    and    reserved   for 
further  consideration  are  not  determined  until  final  decree. 4 
§  22.  What  are  final  judgments — final  judgment  or  decree  must 
terminate  litigation. 

A  judgment  or  decree  is  final  if  it  terminates  the  litigation  on 
the  merits  so  that  in  case  of  affirmance  the  court  below  will  have 
nothing  to  do  but  to  execute  the  judgment  or  decree  it  originally 
rendered. s 


»U.  S.  v.  New  York  C.  R.  R.  Co.,  164  Fed.  324  (C.  C.  A.  2d  Or.);  U.  S.  v. 
Clippings,  106  Fed.  161  (C.  C.  A.  2d  Cir.) 

3  Schuyler  Natl.  Bank  v.  Gadson,  179  U.  S.  681,  45  L.  Ed.  384,  21  S.  C.  918; 
Southern  Ry.  Co.  v.  Postal  Telegraph  Cable  Co.,  179  U.  S.  643, 45  L.  Ed.  356, 21  S.  C. 
249;  Luxton  v.  North  River  Bridge  Co.,  147  U.  S.  341,  37  L.  Ed.  196,  13  S.  C.  356; 
Gladys  Bell  Oil  Co.  v.  McKay,  216  Fed.  129  (C.  C.  A.  8th  Cir.) ;  Rio  Grande  West- 
ern R.  R.  Co.  v.  Stringham,  239  U.  S.  44,  60  L.  Ed.  136,  36  S.  C.  5. 

3  Montgomery  L.  &  W.  P.  Co.  v.  Montgomery  T.  Co.,  219  F.  963;  McGourki  v. 
Toledo  &  O.  C.  R.  R.  Co.,  146  U.  S.  536,  36  L.  Ed.  1079,  13  S.  C.  170. 

For  exceptional  cases  stating  a  contrary  rule  see  Halfpenny  v.  Miller,  232  Fed. 
113  (C.  C.  A.  4th  Cir.). 

*  Covington  v.  First  National  Bank,  185  U.  S.  277,  46  L.  Ed.  906,  22  S.  C.  645; 
Peters  v.  Ferris,  238  U.  S.  608,  59  L.  Ed.  1487,  35  S.  C.  662. 

s  Baxter  v.  Bevill  Phillips  Co.,  219  Fed.  309;  Gladys  Bell  Oil  Co.  v.  McKay,  216 
Fed.  129  (C.  C.  A.  8th  Cir.);  Dermont  v.  Hayes,  197  Fed.  129,  116  C.  C.  A.  553; 
Robinson  v.  Felt,  56  Fed.  328,  5  C.  C.  A.  521 ;  Re  Lennon,  150  U.  S.  393,  14  S.  C.  123, 
37  L.  Ed.  1120;  Lambert  v.  Barrett,  157  U.  S.  700, 15  S.  C.  722,  39  L.  Ed.  865;  Cali- 
fornia Consol.  Min.  Co.  v.  Manley,  203  U.  S.  579,  51  L.  Ed.  326,  27  SC.  779;  Reeves 
v.  Oliver,  168  U.  S.  704,  42  L.  Ed.  1212,  18  S.  C.  945;  Jcske  v.  Cox,  171  U.  S.  685, 
43  L.  Ed.  1179,  19  S.  C.  877;  Bostwick  v.  Brinkerhoff,  100  U.  S.  3,  1  Sup.  Ct.  15,  27 
L.  Ed.  73;  Grant  v.  Insurance  Co.,  106  U.  S.  429, 1  Sup.  Ct.  414,  27  L.  Ed.  237;  St. 

(20) 


Ch.  II)    FEDERAL  DECISIONS — HOW  AND  WHEN  REVIEWABLE      §§  23-26 

§  23.  Orders  at  foot  of  decree  may  be  final. 

After  a  decree  which  disposes  of  a  principal  subject  of 
litigation  and  settles  the  rights  of  the  parties  in  regard  to  that 
matter,  there  may  subsequently  arise  important  matters  requiring 
the  judicial  action  of  the  court  in  relation  to  the  same  property 
and  some  of  the  same  rights  litigated  in  the  main  suit,  making 
necessary  substantive  and  important  orders  and  decrees  in  which 
the  most  material  rights  of  the  parties  may  be  passed  upon  by 
the  court,  and  which  partake  of  the  nature  of  final  decisions  of 
those  rights.  An  appeal  lies  from  such  orders  and  decrees. x 
§  24.  When  reference  to  master  does  not  affect  finality. 

Where  the  decree  determines  the  rights  of  the  parties  and 
refers  the  cause  to  a  Master  for  a  purpose  not  affecting  the  decree, 
it  is  final  and  appealable. 2 
§  25.  Decree  pro  confesso  final,  but  review  limited. 

A  decree  pro  confesso  is  final,  but  the  review  is  limited  to  the 
legal  sufficiency  of  the  bill  of  complaint.3 
§  26.  Judgments  and  decrees  held  final. 

(a)  A  judgment  in  an  action  for  a  writ  of  prohibition  is  final. 4 

(b)  An  order  allowing  attorney's  fees  made  in  the  progress  of 
a  creditor's  suit  is  final  and  appealable.5 


Louis  I.  M.  &  S.  R.  Co.  v.  Southern  Exp.  Co.,  108  U.  S.  24,  2  Sup.  Ct.  Rep.  6, 27  L. 
Ed.  638;  Ex  parte  Norton,  108  U.  S.  237,  2  Sup.  Ct.  Rep.  490,  27  L.  Ed.  709. 

1  In  re  Farmers'  Loan  &  Trust  Co.,  129  U.  S.  206,  213,  9  Sup.  Ct.  Rep.  265,  266, 
32  L.  Ed.  656;  O'dell  v.  H.  Batterman  Co.,  223  Fed.  292. 

'  Mariam  Coal  Co.  v.  Peale,  204  Fed.  161, 122  C.  C.  A.  397;  McGourki  v.  Toledo 
&  O.  R.  Co.,  146  U.  S.  536,  36  L.  Ed.  1079,  13  S.  C.  170;  Hill  v.  Chicago  &  E.  R.  Co., 
140  U.  S.  52,  38  L.  Ed.  331, 11 S.  C.  690 ;  Bank  of  Louisburg  v.  Sheffey,  140  U.  S.  445, 
35  L.  Ed.  493,  11  S.  C.  759;  Menge  v.  Warriner,  120  Fed.  818,  57  C.  C.  A.  434; 
Michoud  v.  Girod,  4  How.  503,  11  L.  Ed.  1076;  Andrews  v.  Natl.  Fdry.  &  Pipe 
Works,  73  Fed.  518,  19  C.  C.  A.  551;  Dean  v.  Nelson,  7  Wallace  342,  19  L.  Ed.  94; 
Burlington  C.  R.  &  N.  R.  Co.  v.  Simmons,  123  U.  S.  55,  31  L.  Ed.  74,  8  S.  C.  58. 

3  Griggs  v.  Nadeau,  221  F.  381 ;  Tire  Co.  v.  Car  Co.,  39  App.  (D.  C.)  508. 

4  In  re  Mt.  Vernon,  240  U.  S.  30,  60  L.  Ed.  507,  36  S.  C.  234. 

s  Central  Trust  Co.  v.  U.  S.  Heating  Co.  (C.  C.  A.  2d  Cir.),  233  Fed.  420;  York- 
shire, etc.,  Co.  v.  Fowler,  78  Fed.  58, 23  C.  C.  A.  643;  Turtle  v.  Claflin,  88  Fed.  122, 
31  C.  C.  A.  419. 

(21) 


Ch.  II)    FEDERAL  DECISIONS — HOW  AND  WHEN  REVIEWABLE  §  27 

(c)  A  judgment  making  an  extra  allowance  for  costs  is 
appealable. x 

(d)  A  light  of  appeal  exists  to  review  a  decree  dismissing  the 
bill  to  one  copyright,  although  the  suit  embiaced  two  copyrights,2 
but  the  opposite  of  it  was  held  in  the  Second  Circuit.3 

(e)  An  order  of  a  District  Court  in  an  intei  state  proceeding 
instituted  by  the  Interstate  Commerce  Commission  to  compel 
answer  to  certain  questions  is  final  and  appealable. 4 

(f)  An  order  made  in  the  course  of  a  foreclosure  proceeding  for 
the  payment  of  money  for  certain  materials  is  final  and  appealable. s 

(g)  An  order  granting  or  refusing  a  writ  of  mandamus  is  final 
and  appealable.6 

(h)  The  decisions  of  the  U.  S.  District  Court  and  the  U.  S. 
Circuit  Court  of  Appeals  in  revenue  cases  are  reviewable  by 
appeal  and  not  writ  of  error. 7 
§  27.  Orders  refusing  intervention  final  and  appealable. 

Where  the  right  of  intervention  is  refused  and  the  rights  of  the 
interveners  are  seriously  threatened,  an  appeal  will  be  entertained. 8 

An  order  dismissing  a  petition  for  intervention  disposing  of  the 
rights  of  the  petitioner  is  a  final  judgment  as  to  that  issue  and  is 
reviewable  by  appeal. 9 

*  Motion  Picture  Patent  Co.  v.  Steiner,  201  Fed.  63,  119  C.  C.  A.  401. 

3  Historical  Pub.  Co.  v.  Jones  Bros.  Pub.  Co.  (C.  C.  A.),  231  Fed.  638. 

3Stromberg  v.  Oronson  (C.  C.  A.  2d  Cir.),  decided  January  9,  1917. 

t  Ellis  v.  Interstate  Commerce  Commission,  237  U.  S.  434,  59  L.  Ed.  1036,  35  S.  C. 
645. 

s  Central  Trust  Co.  v.  Grant  Locomotive  Works,  135  U.  S.  207,  34  L.  Ed.  97, 
16  S.  C.  736;  Empire  Trust  Co.  v.  Erooks  (C.  C.  A.  5th  Cir.),  232  Fed.  641 ;  Wabash 
R.  R.  Co.  v.  Adelbert  College,  208  U.  S.  609,  52  L.  Ed.  642, 28  S.  C.  425;  Grant  v.  E. 
&  W.  R.  R.  Co.,  50  Fed.  795,  1  C.  C.  A.  681. 

«  Detroit  &  M.  Ry.  v.  Michigan  R.  R.,  et  al,  240  U.  S.  564,  60  L.  Ed.  802,  36 
S.  C.  160;  Davis  v.  Corbin,  112  U.  S.  36,  28  L.  Ed.  327,  5  S.  C.  4;  Rosenbaum  v. 
Bauer,  120  U.  S.  461,  30  L.  Ed.  747;  Memphis  v.  Brown,  94  U.  S.  715,  24  L.  Ed.  244. 

7  Gsell  v.  Insular  Custom  Collector,  239  U.  S.  93,  60  L.  Ed.  163,  36  S.  C.  39. 

«  Central  Trust  Co.  v.  Chicago  R.  I.  &  P.  Ry.  Co.,  218  Fed.  336,  134  C.  C.  A.  146 
(2d  Circuit). 

s  Gumbel  v.  Pitkin,  113  U.  S.  545,  28  L.  Ed.  1128,  5  S.  C.  616;  Denny  v.  Bennett, 
128  U.  S.  503,  32  L.  Ed.  496,  9  S.  C.  134;  Central  R.  &  B.  K.  Co.  v.  Farmers'  Loan  & 
Trust  Co.,  79  Fed.  169. 

(22) 


Ch.  II)    FEDERAL  DECISIONS — HOW  AND  WHEN  REVIEWABLE      §§  28~32 

§  28.  Order  limiting  liability  in  admiralty. 

An  order  limiting  the  liability  of  a  steamship  company  and 
enjoining  parties  from  further  proceedings  is  appealable  to  the 
U.  S.  Circuit  Court  of  Appeals.  ■ 
§  29.  Habeas  corpus  orders  final  and  appealable. 

The  refusal  to  grant  a  writ  of  habeas  corpus  is  final  and 
appealable.  * 

Habeas  corpus  cases  are  reviewable  by  appeal  only.3 

An  order  discharging  a  prisoner  is  final  and  appealable. 4 
§  30.  Appealable  orders  on  sales  and  resale. 

A  decree  of  sale  is  appealable. s 

And  decisions  of  the  court  confirming  or  refusing  to  confirm  a 
sale  are  also  appealable. 6 
§  31.  Appeal  from  order  setting  aside  sale. 

A  decree  setting  aside  a  sale  on  foreclosure  and  ordering  a 
resale  does  not  end  the  case.  That  continues  with  all  the  parties 
in  that  suit  before  the  sale.  But  the  bidder  at  the  sale  becomes  a 
new  party;  the  acceptance  of  his  bid  gives  him  the  rights  of  a 
purchaser  unless  legal  objection  to  confirmation  is  shown.  There- 
fore, he  may  appeal  from  that  order,  it  being  final  as  to  him. 7 
§  32.  Judgment  or  decree  not  final  when  motion  to  set  aside 
pending. 

1  Deslinois  v.  La  Campagnie  Generate  Transatlantique,  210  U.  S.  95,  52  L.  Ed. 
973,  28  S.  C.  664;  In  Oceanic  Steam  Navigation  Co.  (C.  C.  A.  2d  Cir.),  204  Fed.  259; 
but,  contra,  see  The  Transfer,  218  Fed.  636,  decided  by  the  same  court. 

*  Walters  v.  McKennis,  221  Fed.  746;  Palliser  v.  United  States,  136  U.  S.  257,34 
L.  Ed.  514,  10  S.  C.  1034. 

i  Horn  v.  Mitchell,  223  Fed.  549;  Rice  v.  Ames,  180  U.  S.  371,  45  L.  Ed.  577,  21 
S.  C.  406;  Fisher  v.  Baker,  203  U.  S.  174,  51  L.  Ed.  142,  27  S.  C.  135. 

4  Brown  v.  Fletcher,  231  F.  92;  Harkarder  v.  Wadley,  172  U.  S.  148,  43  L.  Ed. 
399,  19  S.  C.  119;  Brimmer  v.  Redmond,  138  U.  S.  78,  34  L.  Ed.  862,  11  S.  C.  213; 
Crico  v.  Wilmore,  51  Fed.  202. 

s  East  Coast  Cedar  Co.  v.  Peoples'  Bank,  111  Fed.  449,  49  C.  C.  A.  425;  Baxter  v. 
Revell  P.  Co.,  219  F.  309. 

6  Stokes  v.  Williams,  226  F.  148;  Butterfield  v.  Usher,  91  U.  S.  246,  23  L.  Ed.  318; 
Hovey  v.  McDonald,  109  U.  S.  155,  27  L.  Ed.  890,  3  S.  C.  136;  Bank  of  Louisburg  v. 
Sheffey,  140  U.  S.  452,  35  L.  Ed.  496,  11  S.  C.  759. 

» Investment  Registry  v.  Chicago  &  M.  E.  R.  Co.,  212  Fed.  594  (C.  C.  A.  7th  Cir.) 

(23) 


Ch.  II)    FEDERAL  DECISIONS — HOW  AND  WHEN  REVIEWABLE  §  33 

A  judgment  does  not  become  final  so  it  could  be  appealed 
from  until  a  motion  to  set  it  aside  is  disposed  of.1 

(a)  A  decree  in  alternative  not  final. 

A  decree  is  not  final  which  is  in  the  alternative  and  by  the 
terms  of  which  a  party  has  the  right  to  select  either  one  or  the 
other  course  indicated  by  the  decree.  Until  the  election  to  abide 
or  reject  the  terms  of  the  decree  has  been  made,  the  decree  is 
regarded  as  interlocutory.  * 
§  33.  Decrees  and  orders  held  not  final — when. 

(a)  A  mere  reference  of  a  case  to  a  Master  to  take  an  account 
and  report  back  to  the  court  is  not  regarded  as  a  final  decree. 3 

(b)  Orders  to  pay  money  into  court  pending  future  deter- 
mination as  to  the  disposition  of  same  are  not  appealable. 4 

(c)  A  judgment  of  the  U.  S.  Court  of  Appeals  is  not  final  when 
it  reverses  the  judgment  in  the  District  Court  in  a  condemnation 
case  and  vacates  the  Commissioners'  award  and  directs  a  new 
assessment  by  a  jury.s 

(d)  An  order  of  the  District  Court  in  chambers  declining  to 
grant  a  writ  of  habeas  corpus  is  not  a  final  decision. 6 

(e)  One  arrested  in  a  civil  proceeding  and  held  in  bail  cannot 

"  Omaha  El.  L.  &  P.  Co.  v.  City  of  Omaha,  216  Fed.  848;  Voorhees  v.  John  Mfg. 
Co.,  151  U.  S.  135,  38  L.  Ed.  101,  14  S.  C.  295;  Mason  v.  Pewabic  Min.  Co.  153  U.  S. 
366,  38  L.  Ed.  747, 14  S.  C.  847;  Kingman  &  Co.  v.  Western  Mfg.  Co.  170  U.  S.  678, 
42  L.  Ed.  1193,  18  S.  C.  786;  Fuller  v.  Lake  Erie  &  W.  R.  R.  Co.,  105  Fed.  557,  44 
C.  C.  A.  599;  Memphis  v.  Brown,  94  U.  S.  715,  24  L.  Ed.  244. 

»  Paducah  v.  East  Telephone  Co.,  229  U.  S.  476,  57  L.  Ed.  1287,  33  S.  C.  816. 

1  Odell  v.  Batterman,  223  F.  292;  Latta  v.  Kilborn,  150  U.  S.  539,  37  L.  Ed.  1175, 
14  S.  C.  201 ;  California  Natl.  Bank  v.  Statler,  171  U.  S.  449, 43  L.  Ed.  234,  19  S.  C.  6; 
Keystone  Manganese  &  Iron  Co.  v.  Martin,  132  U.  S.  91,  33  L.  Ed.  275,  10  S.  C.  32; 
Siegel  v.  Swarts,  187  U.  S.  638,  47  L.  Ed.  344,  23  S.  C.  846. 

«  Des  Moines  v.  Des  Moines  W.  Co.,  230  F.  570;  Craighead  v.  Wilson,  18  How. 
202,  15  L.  Ed.  333;  Reeves  v.  Oliver,  168  U.  S.  704,  42  L.  Ed.  1212,  18  S.  C.  945; 
Louisiana  Natl.  Bank  v.  Whitney,  121  U.  S.  284,  30  L.  Ed.  961,  7  S.  C.  897; 
Southern  Ry.  Co.  v.  Postal  Telegraph  Cable  Co.,  179  U.  S.  643,  21  S.  C.  249;  Southern 
Ry.  Co.  v.  Postal  Telegraph  Cable  Co.,  93  Fed.  396,  35  C.  C.  A.  369. 

s  U.  S.  v.  Beatty,  232  U.  S.  463,  58  L.  Ed.  6S6,  34  S.  C.  392. 

6  Lambert  v.  Barrett,  157  U.  S.  697,  39  L.  Ed.  865,  15  S.  C.  722;  Frank  v.  Man- 
gum,  237  U.  S.  309,  59  L.  Ed.  969,  35  S.  C.  582. 

(24) 


Ch.  II)    FEDERAL  DECISIONS — HOW  AND  WHEN  REVIEWABLE      §§  34-35 

appeal  or  sue  out  a  wiit  of  error  from  an  order  denying  his  motion 
to  a  discharge,  as  the  order  is  merely  interlocutory. x 

(f )  Orders  quashing  executions  are  not  final  or  appealable. 3 

(g)  Orders  to  produce  books  and  papers. 3 

§  34.  When  review  must  await  further  proceedings. 

(a)  A  decree  dismissing  a  bill  as  against  one  of  the  defend- 
ants for  want  of  jurisdiction  over  the  person  of  such  defendant 
is  not  final  until  the  main  case  is  disposed  of  against  the  re- 
maining co-defendants,  where  the  liability  is  joint  and  not 
several. 4 

(b)  A  decree  dismissing  a  cross-bill,  but  reserving  jurisdiction 
as  to  the  rest  of  the  case,  is  not  final.5 

(c)  In  partition  suits  the  decree  is  not  final  until  all  the 
directions  of  the  court  have  been  executed  and  confirmed. 6 

(d)  An  order  appointing  commissioners  to  assess  damages  is 
not  final  until  the  court  approves  the  award  and  enters  judgment 
therefor. 7 

(e)  An  assessment  of  the  amount  due  from  garnishees  in  a 
foreign  attachment  on  a  libel  in  admiralty  is  interlocutory  and 
an  appeal  will  not  lie  until  final  disposition  of  the  main  case. 8 

§  35.  On  appeal  in  equity,  law  and  fact  reviewed. 

Both  law  and  fact  will  be  reexamined  in  equity.9  In  contra- 
distinction from  the  practice  in  law  cases,  findings  of  fact  or 

•  Crocker  v.  Knudsen  (C.  C.  A.  9th  Cir.),  232  Fed.  857. 

*  Loeber  v.  Schxoeder,  149  U.  S.  580,  37  L.  Ed.  856,  13  S.  C.  934;  Amis  v.  Smith, 

16  Peters  303,  10  L.  Ed.  973;  Mountz  v.  Hodgson,  4  Cranch  324,  2  L.  Ed.  635. 

J  Webster  Coke  &  Coal  Co.,  207  U.  S.  181,  187. 

4  In  re  Garrosi,  229  F.  363;  Re  Atlanta  City  Ry.  Co.  164  IT.  S.  635,  41  L.  Ed.  580, 

17  S.  C.  208;  Nash  v.  Harshman,  149  U.  S.  264,  37  L.  Ed.  727,  13  S.  C.  845;  Hohorst 
v.  Hamburg-American  Pac.  Co.,  148  U.  S.  262,  37  L.  Ed.  447,  13  S.  C.  590;  Menge 
v.  Warriner,  120  Fed,  817,  57  C.  C.  A.  433. 

s  Gladdys  v.  Makey,  216  Fed.  129,  132  C.  C.  A.  373. 

6  Odell  v.  Batterman,  223  F.  292;  Clark  v.  Roller,  199  U.  S.  541,  50  L.  Ed.  300, 
26  S.  C.  141. 

1 0dell  v.  Batterman,  supra;  Luxton  v.  North  River  Bridge  Co.,  147  U.  S.  337, 
37  L.  Ed.  196,  13  S.  C.  356. 

8  Cushing  v.  Laird,  107  U.  S.  69,  27  L.  Ed.  391,  2  S.  C.  196. 

s  Dower  v.  Richards,  151  U.  S.  663,  38  L.  Ed.  305,  14  S.  C.  452. 

(25) 


Ch.  II)    FEDERAL  DECISIONS — HOW  AND  WHEN  REVIEWABLE      §§  3G-39 

verdicts  of  juries  in  equity  causes,  while  entitled  to  great  weight 
and  due  consideration,  are  not  conclusive  upon  the  ieviewing 
court. r  As  an  appeal  in  equity  in  the  Federal  courts  is  practically 
a  trial  de  novo,  the  appellate  court  is  not  compelled  to  affirm  an 
unjust  decree.2 
§  36.  Concurrent  findings  of  fact  will  not  be  disturbed. 

The   rule   is   well   settled   that   findings   of   fact    concurred 
in  by  two  lower  courts  will  not  be  disturbed  by  the  Supreme 
Court    of    the    United    States    unless    shown    to    be    clearly 
erroneous. 3 
§  37.  Rule  not  applicable  where  no  opinion  is  filed. 

But  this  principle  ordinarily  will  not  be  followed  where  the 
Circuit  Court  of  Appeals  filed  no  opinion. 4 
§  38.  Rule  similar  in  patent  matters. 

In  all  patent  matters  partaking  of  equitable  cognizance,  the 
rule  of  not    disturbing  concurrent    findings  of    fact  has  been 
adopted. s 
§  39.  Review  of  Master's  Report. 

In  the     absence    of    any    exceptions,    the    master's    report 

1  U.  S.  v.  Clark,  200  IT.  S.  601,  51  L.  Ed.  613,  26  S.  C.  340. 

3  Central  Improvement  Co.  v.  Cambria  Steel  Co.,  210  Fed.  697  (C.  C.  A.). 

3  E.  L.  Waterman  Co.  v.  Modern  Pen  Co.,  235  U.  S.  88, 59  L.  Ed.  142,  35  S.  C.  91 ; 
Missouri  R.  Co.  v.  Omaha,  235  U.  S.  121,  59  L.  Ed.  157,  35  S.  C.  82;  Washington 
Securities  Company  Appt.  v.  United  States,  234  U.  S.  76,  58  L.  Ed.  1220,  34  S.  C. 
725;  Texas  &  P.  R.  Co.  v.  Railroad  Commission,  232  U.  S.  338,  438,  34  Sup.  Ct. 
Rep.  438,  34  S.  C.  436;  Dun  v.  Lumbermen's  ^Credit  Asso.  209  U.  S.  20, 23,  52  L.  Ed. 
663,  665,  28  Sup.  Ct.  Rep.  335;  Towson  v.  Moore,  173  U.  S.  17,  24,  43  L.  Ed.  597, 
600,  19  Sup.  Ct.  Rep.  332;  Stuart  v.  Hayden,  169  U.  S.  1, 14, 42  L.  Ed.  639,  643, 18 
Sup.  Ct.Rcp.  274;  Thallman  v.  Thomas,  49  C.  C.  A.,  317,  111  Fed.  277;  Hussey  v. 
Richardson-Roberts  Dry  Goods  Co.,  78  C.  C.  A.,  370,  148  Fed.  598,  602,  and  cases 
cited;  Lacy  v.  McCaffey,  215  Fed.  352  (C.  C.  A.  352);  Blank  v.  Aronson,  109  C.  C. 
A.  327,  330. 

*  Wright-Blodgett  Co.  v.  U.  S.,  236  U.  S.  397,  59  L.  Ed.  037,  35  S.  C. 
339. 

s  General  Electric  Co.  v.  Slemberger,  208  Fed.  700;  Laas  v.  Scott  (C.  C.  A.),  161 
Fed.  122;  Automatic  Weighing  Machine  Co.  v.  Pneumatic  Scale  Corporation,  166 
Fed.  288,  92  C.  C.  A.  20G;  Morgan  v.  Daniels,  153  U.  S.  120,  14  Sup.  Ct.  772,  38 
L.  Ed.  657;  Coffin  v.  Ogden,  18  Wall.  (85  U.  S.)  120,  21  L.  Ed.  821;  Cantrell  v. 
Wallick,  117  U.  S.  689,  6  Sup.  Ct.  970, 29  L.  Ed.  1017. 

(26) 


Ch.  II)    FEDERAL  DECISIONS — HOW  AND  WHEN  REVIEWABLE  §   40 

will  be  taken  as  true,  and  where  exceptions  to  parts  of  it 
are  taken  the  parts  to  which  no  exception  is  taken  will  stand 
as  correct  and  will  not  be  open  to  review  in  an  appellate 
court.1 

But  this  rule,  like  most  rules  of  law  or  practice,  is  not  without 
its  exceptions.  In  Sheffield,  etc.,  Ry.  Co.  v.  Gordon,  151  U.  S. 
285,  291,  14  Sup.  Ct.  343,  344  (38  L.  Ed.  164),  the  Supreme  Court, 
while  holding  the  exceptions  in  that  case  insufficient  to  present 
the  questions  argued,  said: 

"  It  is  true  that,  if  the  report  of  the  master  is  clearly  erroneous  in  any  particular, 
it  is  within  the  discretion  of  the  court  to  correct  the  error ;  but  we  see  no  occasion 
for  exercising  such  discretion  in  this  case." 

It  is  entirely  discretionary  with  the  court  to  grant  an  oppor- 
tunity to  except  to  a  report  after  it  has  been  absolutely  confirmed. 2 

But  where  it  appears  en  the  face  of  the  report  that  the  master 
has  drawn  an  erroneous  conclusion  from  the  facts  he  found,  the 
absence  of  an  exception  does  not  disable  the  court  from  correcting 
the  error  and  entering  a  just  final  decree.3 
§  40.  Master's  findings — how  far  conclusive. 

A  clear  distinction  is  drawn  between  a  reference  to  a  master 
by  the  consent  of  the  parties  and  a  reference  to  a  master  solely 
by  the  action  of  the  court.  In  the  former  case  the  parties  vir- 
tually constitute  the  master  an  arbitrator  to  decide  between  them 
and  his  findings  on  questions  of  fact  or  of  mixed  law  and  fact, 
where  the  testimony  or  other  evidence  is  conflicting,  unless  under 
exceptional  circumstances,  are  conclusive  upon  them.4  Where 
the  reference  is  by  the  court,  and  not  through  the  consent  of  the 
parties,   a  different  rule  applies ;  the  finding  of  the  master  on 

1  Laswell  Land  Co.  v.  Wilson,  Co.,  236  Fed.  322  (C.  C.  A.);  Central  Imp.  Co.  v. 
Cambria  Steel  Co.,  210  F.  696;  Burns  v.  Rosenstein,  135  U.  S.  449,  34  L.  Ed.  193, 
10  S.  C.  718;  Provident  Life  v.  Trust  Co.,  177  Fed.  854, 101  C.  C.  A.  68. 

a  Cent.  Imp.  Co.  v.  Cambria  Steel  Co.  210  Fed.  696  (C.  C.  A.). 

3  Cent.  Imp.  Co.  v.  Cambria  Steel  Co.,  210  Fed.  696. 

<  Bates  v.  Dresser,  229  F.  772;  Davis  v.  Schwartz,  155  U.  S.  631, 15  Sup.  Ct.  237, 
39  L.  Ed.  289. 

(27) 


Ch.  II)    FEDERAL  DECISIONS — HOW  AND  WHEN  REVIEWABLE      §§  41-42 

questions  of  fact  carrying  with  it  less  weight  than  in  the  former 
case.  The  findings  and  conclusions  of  the  master  are  clothed 
with  a  presumption  of  correctness,  not  lightly  to  be  disregarded. 
Unless  in  a  clear  case  the  findings  and  conclusions  of  the  master 
based  upon  conflicting  testimony  and  evidence  will  not  be  dis- 
turbed. Hence  the  findings  of  the  master  even  where  the 
reference  is  not  by  the  consent  of  the  parties  are  prima  facie 
correct.1 

§  41.  Orders  of  the  Interstate  Commerce  Commission  are  not 
reviewable  in  any  court  except  for  a  gross  abuse  of  power 
or  an  unconstitutional  invasion  of  property  rights. 

The  statute  makes  the  finding  of  the  Interstate  Commerce 
Commission  prima  facie  correct.2 
§  42.  Exception  to  the  above  rule. 

The  orders  of  the  Interstate  Commerce  Commission  are  final 
and  are  not  reviewable  in  any  court  unless 

(1)  beyond  the  powers  which  it  may  constitutionally  exercise; 

(2)  beyond  its  statutory  power; 

(3)  based  upon  a  mistake  of  law3;  or 

(4)  when  law  and  fact  are  intermixed. 4 

A  question  of  fact  may  be  involved  in  the  determination  of 

»  Continuous  Glass  Co.  v.  Schmertz  Glass  Co.,  219  F.  205;  Tilghman  v.  Proctor, 
125  U.  S.  136,  8  Sup.  Ct.  894,  31  L.  Ed.  664;  Metzker  v.  Bonebrake,  108  U.  S.  66, 
2  Sup.  Ct.  351,  27  L.  Ed.  654;  Callaghan  v.  Myers,  128  U.  S.  617,  9  Sup.  Ct.  177, 
32  L.  Ed.  547;  Camden  v.  Stuart,  144  U.  S.  104, 12  Sup.  Ct.  5S5,  36  L.  Ed.  363;  Un- 
hairing  Co.  v.  American  Fur  Refining  Co.,  168  Fed.  529,  C.  C.  A.  546. 

3  Cincinnati  H.  &  D.  R.  Co.  v.  Interstate  Commerce  Commission,  206  U.  S.  154, 
51  L.  Ed.  1000,  27  S.  C.  648;  Interstate  Commerce  Commission  v.  Union  Pac.  Co., 
222  U.  S.  311,  56  L.  Ed.  311,  32  S.  C.  108. 

J  Interstate  Commerce  Commission  v.  Union  Pac.  Co.,  222  U.  S.  541,  56  L.  Ed. 
311,  32S.C.  108. 

«  Interstate  Commerce  Commission  v.  Union  Pacific  Co.,  222  U.  S.  541,  545,  56 
L.  Ed.  311,  32  S.  C.  108;  Southern  Pacific  R.  R.  Co.  v.  Interstate  Commerce  Com- 
mission, 219  U.  S.  433,  55  L.  Ed.  283,  31  S.  C.  288 ;  Interstate  Commerce  Commission 
v.  Illinois  Central  R.  R.  Co.,  215  U.  S.  470,  54  L.  Ed.  287,  30  S.  C.  155;  Interstate 
Commerce  Commission  v.  Northern  Pacific  R.  R.  Co.,  216  U.  S.  544,  54  L.  Ed.  609, 
30  S.  C.  417;  Interstate  Commerce  Commission  v.  Alabama  &  Midland  R.  Co.,  168 
U.  S.  146, 174,  42  L.  Ed.  414,18  S.  C.  45. 

(28) 


Ch.  II)    FEDERAL  DECISIONS — HOW  AND  WHEN  REVIEWABLE      §§  43-45 

questions  of  law,  so  that  an  order,  regular  on  its  face,  may  be  set 
aside,  if  it  appears  that  the  rate  is  so  low  as  to  be  confiscatory 
and  in  violation  of  the  constitutional  prohibition  against  taking 
property  without  due  process  of  law  or  if  the  Commission  acted 
arbitrarily  and  unjustly  as  to  fix  rates  contrary  to  evidence  or 
without  evidence  to  support  it,  or  if  the  authority  therein  in- 
volved has  been  exercised  in  such  an  unreasonable  manner  as  to 
cause  it  to  be  within  the  elementary  rule  that  the  substance,  and 
not  the  shadow,  determines  the  validity  of  the  exercise  of  the 
power. r 

§  43.    Moot    questions    not    reviewable — what    questions  are 
moot. 

To  entitle  a  party  to  an  appellate  review  there  must  exist 
between  the  parties  at  the  time  the  appellate  tribunal  reaches 
the  case  a  live  and  real  substantial  controversy  or  it  will  be 
dismissed.  The  appellate  tribunal  will  not  consider  moot  cases 
or  abstract  propositions  of  law.a 
§  44.  Questions  of  costs  not  reviewable,  if  no  other  controversy. 

The  fact  that  questions  of  costs  are  involved  does  not  alter 
the  rule  as  to  the  dismissal  of  moot  questions. 3 
§  45.  Extrinsic  evidence  to  prove  question  moot. 

Upon  the  point  whether  the  questions  presented  are  in  fact 

1  Interstate  Commerce  Comm.  v.  Union  Pacific,  supra. 

*  Hamburg-American  v.  Packerfarth  Actien  Gesellschaft,  239  U.  S.  466,  36  S.  C. 
212,  60  L.  Ed.  387;  East  Tennessee,  Virginia,  and  Georgia  Railroad  Co.  v.  Southern 
Telegraph  Co.,  125  IT.  S.  695,  31  L.  Ed.  853,  8  S.  C.  1391;  Lewis  Publishing  Co.  v. 
Wyman,  228  U.  S.  610,  33  S.  C.  519,  57  L.  Ed.  989;  Bemer  v.  Hayes,  80  Fed.  953, 
26  C.  C.  A.  271;  Wingert  v.  National  Bank,  223  U.  S.  670,  56  L.  Ed.  605,  32  S.  C. 
391 ;  Mills  v.  Green,  159  U.  S.  651,  40  L.  Ed.  293,  16  S.  C.  132;  Gompers  v.  Buck 
Stove  &  Range  Co.,  221  U.  S.  418,  55  L.  Ed.  797,  31  S.  C.  492;  Buck  Stove  Co.  v. 
Federation  of  Labor,  219  U.  S.  581,  55  L.  Ed.  345,  31  S.  C.  472;  Board  of  Flour  In- 
spectors &  Co.  v.  Glover  160  U.  S.  170,  40  L.  Ed.  382,  16  S.  C.  321. 

J  Wingert  v.  First  National  Bank,  223  U.  S.  670,  672,  32  Sup.  Ct.  Rep.  391,  56 
L.  Ed.  605;  Gompers  v.  Buck  Stove  &  Range  Co.,  221  U.  S.  418,  55  L.  Ed.  797, 
31  S.  C.  432;  Buck  Stove  &  Range  Co.  v.  American  Federation  of  Labor,  219  U.  S. 
581,  55  L.  Ed.  345,  31  S.  C.  472;  Richardson  v.  McChesney,  218  U.  S.  487,  54  L.  Ed. 
1121,  31  S.  C.  43;  Jones  v.  Montague,  194  U.  S.  147,  48  L.  Ed.  913,  24  S.  C.  611; 
Mills  v.  Green,  159  U.  S.  657,  40  L.  Ed.  293,  16  S.  C.  132. 

(29) 


Ch.  II)    FEDERAL  DECISIONS — HOW  AND  WHEN  REVIEWABLE      §§  46-48 

moot,  the  court   may   satisfy  itself,  if  necessary,  by  extrinsic 

evidence.  ■ 

§  46.  Stipulated  judgments  and  decrees  not  appealable. 

Judgments  and  decrees  entered  by  stipulation  of  the  parties 
are  not  appealable. 3 
§  47.  Naturalization  cases. 

The  decisions  as  to  the  right  of  appeal  in  naturalization  dases 
are  not  harmonious.  In  the  Fourth  and  Fifth  Circuit  it  has  been 
held  that  judgments  and  decrees  refusing  naturalization  are  not 
reviewable  either  by  appeal  or  error3,  while  in  the  Second  Circuit 
appeals  were  entertained. 4  In  a  recent  case,  U.  S.  v.  Mayer,  de- 
cided April  12,  1917,  the  Circuit  Court  of  Appeals  for  the  Second 
Circuit  entertained  an  appeal  and  held  that  German  aliens  who 
filed  their  petitions  prior  to  the  declaration  of  war  with  Germany 
may  be  admitted  if  otherwise  qualified. 
§  48.  Decisions  affecting  attorneys— reviewable  by  mandamus. 

Where  an  inferior  court,  acting  without  jurisdiction,  disbars 
an  attorney  from  practicing  law  for  a  contempt  committed  by  the 
attorney  before  another  court,  a  writ  of  mandamus  may  be 
resorted  to  to  compel  the  reinstatement  of  the  attorney  upon  the 
roll  of  attorneys. s 


*  Mills  v.  Green,  159  U.  S.  651, 16  Sup.  Ct.  132, 40  L.  Ed.  293;  Jones  v.  Montague, 
194  U.  S.  137,  24  Sup.  Ct.  611,  48  L.  Ed.  913;  Richardson  v.  McChesney,  218  U.  S. 
487,  31  Sup.  Ct.  43,  54  L.  Ed.  1121 ;  Buck  Stove,  etc.,  Co.  v.  American  Federation  of 
Labor,  219  U.  S.  581,  31  Sup.  Ct.  472,  55  L.  Ed.  345;  Gompers  v.  Buck  Stove,  etc., 
Co.  221  U.  S.  418,  451,  31  Sup.  Ct.  Rep.  492,  55  L.  Ed.  797,  34  L.  R.  A.  (N.  S.)  874; 
Meyers  v.  Cheesman  (C.  C.  A.),  174  Fed.  783,  785,  98  C.  C.  A.  491. 

2  Knott  v.  St.  Louis  S.  W.  R.  R.  Co.,  230  U.  S.  509,  57  L.  Ed.  1595,  33 
S.  C.  984. 

»U.  S.  v.  Dola,  177  Fed.  104  (4th  Cir.),  130  C.  C.  A.  521,  21  Ann.  Cases  665; 
U.  S.  v.  Ncugebauer,  221  Fed.  938,  137  C.  C.  A.  508  (5th  Cir.) 

«U.  S.  v.  Cohen,  179  Fed.  836,  103  C.  C.  A.  324;  Younghouse  v.  IT.  S.  218  Fed. 
168,  134  C.  C.  A.  67,  and  also  dissenting  opinion  of  Judge  Hough  in  U.  S.  v.  Mulvy, 
232  Fed.  513. 

s  Ex  parte  Bur  9  Wheat.  529,  6  L.  Ed.  152;  Ex  parte  Bradley,  7  Wall.  364,  19  L. 
Ed.  214;  Ex  parte  Secombe,  19  How.  13,  15  L.  Ed.  565;  Ex  parte  Robinson,  19  Wall. 
513,  22  L.  Ed.  205;  Ex  parte  Wall.  107  U.  S.  265,  27  L.  Ed.  552. 

(30) 


Ch.  II)     FEDERAL  DECISIONS — HOW  AND  WHEN  REVIEWABLE      §§  49~51 

§  49.   Review  of  disbarment — Remedy  by  mandamus  exclusive. 

The  Circuit  Court  of  Appeals  for  the  Sixth  Circuit1  held  that, 
since  the  passage  of  the  Court  of  Appeals  Act,  a  judgment  strik- 
ing the  name  of  an  attorney  from  the  rolls  was  reviewable  by  writ 
of  error,  but  in  the  same  case  the  Surpeme  Court  of  the  United 
States  held  that  the  remedy  by  mandamaus  was  exclusive. 2 
§  50.     Supervisory  jurisdiction  of  the  Supreme  Court. 

The  Supreme  Court  of  the  United  States  will  entertain  juris- 
diction for  the  purpose  of  protecting  the  members  of  the  Bar  as 
officers  of  the  court  from  illegal  and  oppressive  orders  of  inferior 
courts. 
§  51.    Rights  of  attorneys. 

The  late  Chief  Justice  Fuller,  in  In  re  Sachs,  190  U.  S.  1,  laid 
down  the  following  rule : 

"In  the  ordinary  case  of  advice  to  clients,  if  an  attorney  acts 
in  good  faith  and  in  the  honest  belief  that  his  advice  is  well 
founded  and  in  the  just  inteiests  of  his  client,  he  cannot  be  held 
liable  for  error  in  judgment.  The  preservation  of  the  independ- 
ence of  the  bar  is  too  vital  to  the  due  administration  of  justice  to 
allow  of  the  application  of  any  other  general  rule." 

And  in  Ex  parte  Garland,  71  U.  S.  379,  the  judge  says: 

"The  attorney  and  counselor  being,  by  the  solemn,  judicial 
act  of  the  court,  clothed  with  his  office,  does  not  hold  it  as  a 
matter  of  grace  and  favor.  The  right  which  it  confers  upon  him 
to  appear  for  suitors,  and  to  argue  causes,  is  something  more  than 
a  mere  indulgence,  revocable  at  the  pleasure  of  the  court,  or  at 
the  command  of  the  Legislature.  It  is  a  right  of  which  he  can 
only  be  deprived  by  the  judgment  of  the  court,  for  moral  or 
professional  delinquency." 

1  In  re  Thatcher,  212  Fed.  801,  C.  C.  A.  6th  Circuit. 

a  Thatcher  v.  United  States,  241  U.  S.  644;  60  L.  Ed.  1218;  36  Sup.  Ct.  Rep,  450; 
Ex  parte  Bradley,  74  U.  S.  (7  Wall.)  364,  19  L.  Ed.  214;  Ex  parte  Garland,  71 
U.  S.  (4  Wall.)  379,  18  L.  Ed.  366;  Ex  parte  Robinson  (19  Wall.),  86  U.  S.  512,  22 
L.  Ed.  205;  In  re  Sachs  and  Watts,  190  U.  S.  1,  47  L.  Ed.  933,  23  S.  C.  718;  In  re 
Chetwood,  165  U.  S.  443,  41  L.  Ed.  782, 17  S.  C.  385. 

(31) 


Ch.  Ill)      WHO  MAY   APPLY  FOR   REVIEW   OF   A  JUDGMENT 


§1 


CHAPTER    III 

Who  may  Apply  for  Review  of  a  Judgment  or  Decree  Entered  In 

a  Federal  Court 


Sec. 

1.  All    parties    to    the    record,    their 

privies  and  personal  representa- 
tives may  ask  review. 

2.  Bankrupt  may  appeal  in  his  own 

name. 

3.  Party  in  contempt  not  deprived  of 

right  of  appeal. 

4.  Next  friend  of  insane  person  may 

appeal. 
5.  All  united  in    interest    must  join  in 

appeal   or    error.      Especially    in 

equity  causes. 
Separate    appeal    permitted    where 

interest  is  separate. 
Party  added  by  order  of  court  may 

ask  review. 
Statutory    receiver    of    corporation 

may  appeal. 
Receiver  cannot  appeal. 
Purchaser  at  Judicial  Sale  may  appeal. 
Procedure  for  severance  of  record. 
Special    notice    unnecessary    when 

taken  in  open  court. 
Severance  by  amendment  to  bring 

in  omitted  parties. 
14.  Waiver  of  severance. 

§  i.  All  parties  to  the  record,  their  privies  and  personal  repre- 
sentatives may  ask  review. 

All  parties  to  the  record  and  their  privies  or  personal  repre- 
sentatives who  are  aggrieved  by  the  judgment  or  decree  and  have 
some  interest  in  the  subject-matter  of  the  suit,  may  appeal  or  sue 
out  a  writ  of  error.    Strangers  to  the  record  as  a  rule  cannot  do  so. x 

x  Ex  parte  Leaf  Tobacco  v.  Board  of  Trade  of  New  York  City,  222  U.  S.  578,  32 
Sup.  Ct.  Rep.  833,  56  L.  Ed.  323;  U.  S.  ex  rel  Boarmanv.  Louisiana,  217  Fed.  757, 133 
C.  C.  A.  4S7;  Credits  Commutation  Co.  v.  United  States,  177  U.  S.  311,  317,  44  L. 

(32) 


6. 


8. 

9. 

10. 
11. 
12. 

13. 


Sec. 

(a)  Dismissal  for   want  of  com- 
pliance with  the  above  rule. 

15.  When    intervenors    may    appeal — 

refusing  intervention. 

16.  Leave     to     appeal     compelled     by 

mandamus. 

17.  Appeal   the   method    of    review    in 

intervention. 

18.  Intervenor  may  appeal  also. 

(a)  After  cause  dismissed. 

(b)  After  intervention  granted. 

(c)  All  parties  to  be  brought  into 
court. 

19.  Persons    not    parties    to    record — 

when  heard. 

20.  Only  those  affected  may  assail  con- 

stitutionality of  a  statute. 

2 1 .  Who  may  assail  state  statutes. 

22.  Government  cannot  appeal  or  bring 

certiorari  in  criminal  cases,  except 
under  Criminal  Appeals  Act. 

23.  Suits  in  forma  pauperis:    Seamen's 

Suits. 

(a)  The  Statute. 

(b)  Construction  of  Statute. 


Ch.  Ill)         WHO  MAY  APPLY  FOR   REVIEW  OF   A  JUDGMENT  §§  2-5 

§  2.  Bankrupt  may  appeal  in  his  own  name. 

Judgment  entered  against  a  defendant  after  an  adjudication 
in  bankruptcy  may  be  reviewed  on  a  writ  of  error  sued  out  in  his 
own  name.  * 
§  3.  Party  in  contempt  not  deprived  of  right  of  appeal. 

The  fact  that  a  party  is  in  contempt  of  court  does  not  deprive 
him  of  his  right  to  appeal  from  any  judgment  or  decree  affecting 
his  interest. 2 
§  4.  Next  friend  of  insane  person  may  appeal. 

The  next  friend  of  an  insane  person  may  sue  out  a  writ  of 
error  pending  the  appointment  of  a  guardian  ad  litem. 3 
§  5.  All  united  in  interest  must  join  in  appeal  or  error — Espe- 
cially in  equity  cases. 

The  rule  is  inflexible  that  all  parties  to  a  judgment  or  decree 
must  join  in  an  appeal  or  writ  of  error  or  be  detached  from  the 
right  by  some  proper  proceeding  or  by  their  renunciation. 4  (For 
form  of  Notice  of  Severance  see  Appendix  53. 

Ed.  782,  786,  20  S.  C.  636;  Indiana  Southern  R.  R.  Co.  v.  Liverpool  L.  &  G.  Ins.  Co., 
109  U.  S.  168,  27  L.  Ed.  895,  3  S.  C..108;  South  Carolina  v.  Wesley,  155  U.  S.  542, 
39  L.  254, 15  S.  C.  230;  Elwell  v.  Fosdick,  134  U.  S.  500,  513,  33  L.  Ed.  998,  1002,  10 
S.  C.  598;  Kidder  v.  Northwestern  Mutual  Life  Ins.  Co.,  117  Fed.  999;  Hunt  v.  Oliver, 
109  U.  S.  177,  27  L.  Ed.  897,  3  S.  C.  114;  Guion  v.  Liverpool,  London  and  Globe  Ins. 
Co.,  109  U.  S.  173, 27  L.  Ed.  895,  3  S.  C.  108;  Savannah  v.  Jesup,  106  U.  S.  563, 27  L. 
Ed.  276,  1  S.  C.  512;  Georgia  v.  Jesup,  106  U.  S.  458,  27  L.  Ed.  216,  1  S.  C.  363;  Re 
Cockcroft,  104  U.  S.  578,  26  L.  Ed.  856;  Buel  v.  Farmers'  L.  &  Trust  Co.,  104 
Fed.  839;  Ex  parte  Cutting,  94  U.  S.  14,  19,  24  L.  Ed.  49;  The  Burns,  9  Wall.  237, 
19  L.  Ed.  620;  Payne  v.  Niles,  20  How.  219,  15  L.  Ed.  895;  Connor  v.  Peugh's 
Lessee,  18  How.  394,  15  L.  Ed.  432;  Arken  v.  Smith,  54  Fed.  895,  4  C.  C.  A.  652; 
Bayard  v.  Lombard,  9  How.  530,  13  L.  Ed.  245. 

1  Phil.  Casualty  Co.  v.  Fechheimer,  220  F.  401;  Hill  v.  Harding,  103  U.  S.  90,  26 
L.  Ed.  310. 

■  Brigham  City  v.  Toltec  Ranch  Co.,  101  Fed.  85,  41  C.  C.  A.  222;  Montgomery 
L.  &  W.  P.  Co.  v.  Montgomery  T.  Co.,  219  F.  963. 

J  King  v.  McLean  Asylum,  64  Fed.  325, 12  C.  C.  A.  139;  In  re  Kronberg,  208  F.  203. 

*  Orleans-Kenner  Elec.  Ry.  Co.  v.  Dunbar,  218  Fed.  344;  Winters  v.  United  States 
207  U.  S.  564,  578,  52  L.  Ed.  340,  345,  28  S.  C.  207;  Lamon  et  al  v.  Speer,  198  Fed. 
453,  C.  C.  A.;  Alsop  v.  Conway,  188  Fed.  568,  C.  C.  A.;  Wilson  v.  Kiesel,  164  U.  S. 
248,  41  L.  Ed.  422,  17  Sup.  Ct.  Rep.  124;  Beardsley  v.  Arkansas  &  L.  R.  Co.,  158 
U.  S.  123,  39  L.  Ed.  919;  Davis  v.  Mercantile  Trust  Co.,  152  U.  S.  590,  38  L.  Ed. 

3  (33) 


Ch.  Ill)        WHO  MAY  APPLY  FOR   REVIEW  OF  A  JUDGMENT  §§  6-8 

This  rule  is  now  rigidly  enforced  in  equity  causes. " 
§  6.  Separate  appeal  permitted  where  interest  is  separate. 

But  where  the  interest  of  a  party  is  separate  from  that  of  the 
other  defendants  or  plaintiffs,  he  may  appeal  without  them.3 
§  7.  Party  added  by  order  of  court  may  ask  review. 

If  by  any  order  of  Court  one  has  been  made  a  party  to  the 
record,  he  may  appeal  or  sue  out  a  writ  of  error,  as  the  nature  of 
the  case  will  permit.3 
§  8.  Statutory  receiver  of  corporation  may  appeal. 

A  statutory  receiver  who  was  not  a  party  to  the  judgment 
may  sue  out  a  writ  of  error  to  vacate  a  judgment  entered  against 
the  defunct  corporation.4 


663,  14  Sup.  Ct.  Rep.  693;  Inglchart  v.  Stansbury,  151  U.  S.  68,  38  L.  Ed.  76,  14 
Sup.  Ct.  Rep.  237;  Hardee  v.  Wilson,  146  U.  S.  179,  36  L.  Ed.  933,  13  Sup.  Ct. 
Rep.  39;  Dolan  v.  Jennings,  139  U.  S.  385,  35  L.  Ed.  217,  11  Sup.  Ct.  Rep.  584; 
Mason  v.  United  States,  136  U.  S.  581,  34  L.  Ed.  545, 10  Sup.  Ct.  Rep.  1062;  Estes  v. 
Trabue,  Davis  &  Co.,  128  U.  S.  225,  230,  32  L.  Ed.  437,  438,  9  Sup.  Ct.  Rep.  58; 
Feibelman  v.  Packard,  108  U.  S.  14,  27  L.  Ed.  634,  1  Sup.  Ct.  Rep.  138;  Simpson  v. 
Greeley,  20  Wall.  152, 22  L.  Ed.  338;  Hampton  v.  Rouse,  13  Wall.  187,  20  L.  Ed.  593; 
Masterson  v.  Howard,  10  Wall.  416,  19  L.  Ed.  953;  Mussina  v.  Cavazos,  6  Wall.  355, 
18  L.  Ed.  810;  Wilson  v.  Life  &  Fire  Ins.  Co.,  12  Pet.  140,  9  L.  Ed.  1032;  Owings  v. 
Kincannon,  7  Pet.  399,  8  L.  Ed.  727;  Williams  v.  Bank  of  United  States,  11  Wheat. 
414,  6  L.  Ed.  508. 

•  Beardsley  v.  Arkansas  &  L.  Co.,  158  U.  S.  123,  39  L.  919, 15  S.  C.  786;  Winters 
v.  U.  S.,  207  U.  S.  564,  52  L.  Ed.  340,  28  S.  C.  207. 

'  Winters  v.  United  States,  207  U.  S.  564,  578,  52  L.  Ed.  340,  345,  28  S.  C.  207; 
Orleans  Kenner  Elect.  Ry.  Co.  v.  Dunbar,  218  Fed.  344,  134  C.  C.  A.  152;  Gilfillan 
v.  McKee,  159  U.  S.  303,  40  L.  Ed.  161, 16  Sup.  Ct.  Rep.  6;  Beardsley  v.  Arkansas, 
158  U.  S.  123,  39  L.  Ed.  919,  15  S.  C.  786;  City  Natl.  Bank  v.  Hunter,  129  U.  S. 
557,  32  L.  Ed.  752,  9  Sup.  Ct.  Rep.  346;  Hanrick  v.  Patrick,  119  U.  S.  156, 30  L.  Ed. 
396,7Sup.Ct.  Rep.  147;  Basket  v.  Hassell,  107  U.  S.  602,  608,  27  L.  Ed.  500,  502, 
2  Sup.  Ct.  Rep.  415;  Milner  v.  Meek,  95  U.  S.  252,  24  L.  Ed.  444;  Mercantile,  etc., 
Co.  v.  Kewanee,  58  Fed.  6,  7  C.  C.  A.  3 ;  Hampton  v.  Rouse,  13  Wail.  187,  20  L. 
Ed.  593 ;  Germain  v.  Mason,  12  Wall.  259,  20  L.  Ed.  392;  Clifton  v.  Sheldon,  23  How. 
481,  16  L.  Ed.  429;  Brewster  v.  Wakefield,  22  How.  118,  129,  16  L.  Ed.  301,  304; 
Forgay  v.  Conrad,  6  How.  201,  12  L.  Ed.  404;  Todd  v.  Daniel,  16  Pet.  521,  523,  10 
L.  Ed.  1054,  1055;  Cox  v.  U.  S.,  6  Peters  172,  8  L.  Ed.  359. 

J  Tuttle  v.  Claffling,  88  Fed.  122;  Everett  C.  &  B.  v.  Alpha  P.  C.  Co.,  225  F.  931. 

4  Central  Trust  Co.  of  N.  Y.  v.  Chicago  R.  L.  &  P.  R.  Co.  218  F.  336;  Rust  v. 
United  Waterworks  Co.,  70  Fed.  129, 17  C.  C.  A.  16. 

(34) 


Ch.  Ill)        WHO  MAY  APPLY  FOR  REVIEW  OF  A  JUDGMENT       §§  9-12 

§  9.  Receiver  cannot  appeal. 

An  ordinary  receiver,  as  distinguished  from  a  statutory  re- 
ceiver, is  merely  an  officer  of  the  Court  and  has  no  such  interest 
in  the  controversey  as  to  entitle  him  to  an  appeal. x 
§  10.  Purchaser  at  Judicial  Sale  may  appeal. 

A  purchaser  at  a  judicial  sale  becomes  a  party  to  the  record 
and  may  appeal  from  an  order  of  court  refusing  to  confirm  the 
sale  or  from  the  order  setting  aside  the  sale. a 

Bidders   or  purchasers   at   a   foreclosure   sale,  although  not 
parties  to  the  suit,  are  entitled  to  appeal  as  to  matters  affecting 
them. J 
§  11.  Procedure  for  severance  of  record. 

Where  a  co-plaintiff  or  co-defendant  refuses  to  join  in  an 
appeal  or  writ  of  error,  the  party  desiring  to  appeal  may  give 
notice  to  such  co-party  or  co-parties  of  his  intention  to  appeal  or 
sue  out  a  writ  of  error  and  require  them  to  appear  before  the 
judge  or  justice  to  whom  the  application  for  an  appeal  will  be 
made  upon  the  motion  for  an  appeal  or  error  and  a  severance  of 
the  record.  When  the  order  of  appeal  and  severance  is  so  entered, 
the  record  stands  severed,  and  the  appeal  or  writ  of  error  is 
properly  allowed  to  the  petitioning  party.4 
§  12.  Special  notice  unnecessary  when  taken  in  open  court. 

It  has  been  held,  however,  that  where  an  appeal  is  prayed  in 
open  court  in  term  time  where  all  the  parties  were  present  or  had 
notice,  that  this  was  equivalent  to  a  severance  of  the  record  and 

Grier  v.  Union  National  Bank,  217  Fed.  293. 
a  Investment  Co.  v.  Chicago,  Milwaukee  &  E.  R.  Co.,  212  Fed.  601  (C.  C.  A. 
7th  Circuit). 

*  Stokes  v.  Williams,  226  F.  148;  Blossom  v.  Milwaukee,  etc.,  R.  R.  Co.,  1  Wall. 
655,  17  L.  Ed.  673. 

*  Winters  v.  United  States,  207  U.  S.  564,  52  L.  Ed.  340,  28  S.  C.  207;  Re 
Key,  189  U.  S.  84,  47  L.  Ed.  720,  23  S.  C.  624;  Beardsley  v.  Arkansas  &  L.  R. 
Co.,  158  U.  S.  123,  39  L.  Ed.  919,  15  S.  C.  786;  Inglehart  v.  Stansbury,  151 
U.  S.  68,  38  L.  Ed.  76,  14  S.  C.  237;  Falkner  v.  Hutchins,  126  Fed.  363,  61 
C.  C.  A.  425;  O'Dowd  v.  Russell,  14  Wall.  403,  404,  20  L.  Ed.  857.  For  forms  see 
Appendix  53. 

(35) 


Ch.  Ill)         WHO  MAY   APPLY  FOR   REVIEW  OF   A  JUDGMENT      §§  13-10 

that  special  notice  was  unnecessary,  but  it  is  safer  to  adopt  the 

procedure  outlined  in  the  preceding  paragraph. * 

§  13.  Severance  by  amendment  to  bring  in  omitted  parties. 

If  urged  in  time,  the  appellate  tribunal  for  good  cause  shown 
may  permit  an  amendment  of  the  record  by  allowing  the  omitted 
parties  to  be  brought  in. a 
§  14.  Waiver  of  severance. 

The  point  of  want  of  "summons  and  severance"  is  waived  by 
a  general  appearance  or  defense  on  the  merits.3 

(a)  Where  there  has  been  no  waiver  the  appeal  or  writ  of 
error  will  be  dismissed. 4 
§  15.  When  interveners  may  appeal — refusing  intervention. 

The  general  rule  is  that  the  denial  of  a  petition  to  intervene 
is  discretionary  and  therefore  not  appealable.  The  discretion, 
however,  must  be  exercised  in  accordance  with  recognized 
judicial  standards.  There  is  a  class  of  cases  where  the 
claimant's  rights  are  finally  disposed  of  and  intervention  is 
necessary  for  their  protection,  in  which  the  right  to  intervene 
is  absolute.  Cases  recognizing  the  existence  of  these  two 
classes  are5 
§  16.  Leave  to  appeal  compelled  by  mandamus. 

Mandamus  in  the  Supreme  Court  of  the  United  States  is 


*  The  Bylands,  231  F.  101;  Detroit  v.  Guaranty  Company,  168  Fed.  608,  611,  93 
C.  C.  A.  604. 

*  Teel  v.  Chesapeake  &  O.  R.  R.  Co.,  204  Fed.  914  (C.  C.  A.) ;  Riningcr  v.  Puget 
Sound  Elec.  Co.  220  Fed.  419  (C.  C.  A.). 

3  Amis  v.  Smith,  16  Peters  303,  10  L.  Ed.  973. 

«  Bank  v.  Conly  Bros.  Const.  Co.,  205  Fed.  282,  C.  C.  A.,  and  authorities  referred 
to  in  §  11  supra. 

s  Central  Trust  Co.  v.  Chicago,  R.  I.  &  P.  R.  Co.,  218  Fed.  336,  134  C. 
C.  A.  146;  Credits  Commutation  Co.  v.  United  States,  177  U.  S.  311,  20  Sup. 
Ct.  636,  44  L.  Ed.  782;  in  the  Matter  of  Farmers'  Loan  &  Trust  Co.,  129 
U.  S.  206,  32  L.  Ed.  656,  9  S.  C.  265;  United  States  v.  Phillips,  107  Fed. 
824,  46  C.  C.  A.  660;  Minot  v.  Mastin,  95  Fed.  734,  37  C.  C.  A.  234;  Farmers' 
Loan  &  Trust  Co.  v.  Cape  Fear  &  Yadlin  Valley  Ry.  Co.  (C.  C.  A.),  71  Fed. 
38;  Farmers'  Loan  &  Trust  Co.  v.  Northern  Pacific  Railway  Co.  (C.  C.  A.), 
66  Fed.  169. 

(36) 


Ch.  Ill)         WHO  MAY  APPLY   FOR   REVIEW   OF   A  JUDGMENT     §§  17-20 

the  proper  remedy  to  compel  a  judge  to  allow  an  appeal  to  an 

intervenor.1 

§  17.  Appeal  the  method  of  review  in  intervention. 

The  refusal  to  permit  an  intervention  is  reviewable  only  by 
appeal  and  not  by  a  writ  of  error. a 
§  18.  Intervenor  may  also  appeal. 

(a)  Where  suit  is  dismissed  as  to  the  parties  to  the  suit 
intervenor  may  appeal.3 

(b)  Parties  who  were  allowed  to  intervene  may  appeal. 4 

(c)  Intervenors  who  appeal  must  bring  all  parties  into  court.5 
§  19.  Persons  not  parties  to  record — when  heard. 

Ordinarily  only  parties  to  the  suit  will  be  heard  in  an  appellate 
tribunal,  but  it  has  been  held  that  persons  not  parties  to  the 
proceedings  will  be  given  a  standing  on  a  proper  showing  that  the 
decision  of  the  case  may  operate  prejudicial  to  their  rights. 6 
§  20.  Only  those  affected  may  assail  the  constitutionality  of  a 
statute. 

It  is  the  well-settled  rule  of  the  United  States  Supreme  Court 
that  it  only  hears  objections  to  the  constitutionality  of  laws  from 
those  who  are  themselves  affected  by  its  alleged  unconstitution- 
ality in  the  feature  complained  of.  They  cannot  complain  of  any 
injury  to  others.7 

"  St.  Louis  I.  M.  &  S.  Ry.  Co.,  Bellamy,  211 F.  172;  In  re  Farmers'  Loan  &  Trust 
Co.,  129  U.  S.  206,  32  L.  Ed.  656,  9  S.  C.  265. 

*  Harry  Bros.  Co.  v.  Yaryan  Naval  S.  Co.,  219  Fed.  884. 
3  U.  S.  v.  Dev.  Co.,  203  Fed.  960  (C.  C.  A.). 
<  Ex  parte  Jordan,  94  U.  S.  248,  24  L.  Ed.  123. 

5  Hill  v.  Western  Elect.  Co.,  214  F.  243;  Davis  v.  Mercantile  Trust  Co.,  152  U.  S. 
590,  38  L.  Ed.  563,  14  S.  C.  693. 

6  United  States  v.  Terminal  Railroad  Association,  236  U.  S.  194,  59  L-  Ed.  535, 
35  Sup.  Ct.  Rep.  408. 

»  Jeffrey  Mfg.  Co.  v.  Blagg,  235  U.  S.  571,  35  Sup.  Ct.  Rep.  167,  59  L.  Ed.  364; 
Erie  R.  Co.  v.  Williams,  233  U.  S.  685,  58  L.  Ed.  1155,  34  S.  C.  761;  Missouri  K.  & 
T.  R.  Co.  v.  Cade,  233  U.  S.  642,  648,  58  L.  Ed.  1135,  1137,  34  Sup.  Ct.  Rep.  678; 
Plymouth  Coal  Co.  v.  Pennsylvania,  232  U.  S.  531,  544,  58  L.  Ed.  713,  719,  34  Sup. 
Ct.  Rep.  359;  Darnell  v.  Indiana,  226  U.  S.  390,  398,  57  L.  Ed.  267,  272,  33  Sup.  Ct. 
Rep.  120;  Rosenthal  v.  New  York,  226  U.  S.  260, 271,  57  L.  Ed.  212,  217,  33  Sup.  Ct. 
Rep.  27;  Yazoo  &  M.  Valley  R.  Co.  v.  Jackson  Vinegar  Co.,  226  U.  S.  217,  219,  57 

(37) 


Ch.  Ill)      WHO  MAY  APPLY  FOR  REVIEW  OF  A  JUDGMENT       §§  21-23 

§  21.  Who  may  assail  state  statutes. 

A  party  cannot  assail  the  constitutionality  of  a  state  statute 
on  the  ground  that  it  is  repugnant  to  the  commerce  clause  of  the 
Constitution  of  the  United  States  and  to  the  Acts  of  Congress 
relating  to  same,  if  the  judgment  under  review  was  not  based 
upon  a  claim  arising  out  of  interstate  commerce. x 
§  22.  Government  cannot  appeal  or  bring  certiorari  in  criminal 
cases,  except  under  criminal  appeals  act. 

The  United  States  cannot  appeal  from  a  judgment  in  a 
criminal  case  unless  the  appeal  is  expressly  authorized  by  statute. 
The  reasons  for  this  rule  are  fully  stated. 2 

Acting  upon  this  principle,  the  Supreme  Court  of  the  United 
States  quashed  a  writ  of  certiorari  which  it  had  previously 
allowed  on  the  petition  of  the  United  States  in  a  criminal  case.3 
§  23.  Suits  in  forma  pauperis. 

(a)  The  Statute.  Sect.  1626  of  the  compiled  statutes  of 
United  States  for  19 16. 

"Sec.  1.  That  any  citizen  of  the  United  States,  entitled  to  commence  or 
defend  any  suit  or  action,  civil  or  criminal,  in  any  court  of  the  United  States, 
may,  upon  the  order  of  the  court,  commence  and  prosecute  or  defend  to  con- 

L.  Ed.  193, 194,  33  Sup.  Ct.  Rep.  40;  Standard  Stock  Food  Co.  v.  Wright,  225  U.  S. 
540, 550, 56  L.  Ed.  1197,  1201, 32  Sup.  Ct.  Rep.  784;  Engel  v.  O'Malley,  219  U.  S.  128, 
135,  55  L.  Ed.  128,  135,  31  Sup.  Ct.  Rep.  190;  Southern  R.  Co.  v.  King,  217  U.  S. 
524,  534,  54  L.  Ed.  868,  871,  30  Sup.  Ct.  Rep.  594. 

1  Missouri  K.  &  T.  R.  Co.  v.  Cade,  233  U.  S.  642,  58  L.  Ed.  1135,  34  Sup.  Ct.  Rep. 
678;  Plymouth  Coal  Co.  v.  Pennsylvania,  232  U.  S.  531,  544,  ante  359,  34  Sup.  Ct. 
Rep.  359,  58  L.Ed.  713;  Farmers' &  M.  Sav.  Bank,  v.  Minnesota,  232  U.  S.  516, 
530,  ante  354,  34  Sup.  Ct.  Rep.  354,  58  L.  Ed.  706;  Rosenthal  v.  New  York,  226 
U.  S.  260,  271,  57  L.  Ed.  212,  217,  33  Sup.  Ct.  Rep.  27;  Standard  Stock  Food  Co. 
v.  Wright,  225  U.  S.  540,  550,  56  L.  Ed.  1197,  1201,  32  Sup.  Ct.  Rep.  784;  Southern 
R.  Co.  v.  King,  217  U.  S.  524,  534,  54  L.  Ed.  868, 871,  30  Sup.  Ct.  Rep.  594;  Seaboard 
Air  Line  R.  Co.  v.  Seegers,  207  U.  S.  73,  76,  52  L.  Ed.  108,  109,  28  Sup.  Ct.  Rep.  28; 
New  York  ex  rel.  Hatch  v.  Reardon,  204  U.  S.  152,  160,  51  L.  Ed.  415,  422,  27  Sup. 
Ct.  Rep.  188;  Hooker  v.  Burr,  194  U.  S.  415,  419,  48  L.  Ed.  1046,  1050,  24  Sup.  Ct. 
Rep.  706;  Tyler  v.  Judges  of  the  Court  of  Registration,  179  U.  S.  405,  409,  45  L. 
Ed.  252, 254, 21  Sup.  Ct.  Rep.  206. 

■  United  States  v.  Sanges,  144  U.  S.  310,  36  L.  Ed.  445,  12  S.  C.  609. 

»  United  States  v.  Evans,  213  U.  S.  297,  53  L.  Ed.  803,  29  S.  C.  507.  And  see 
•'Review  under  the  Criminal  Appeals  Act,"  also  Chapter  V. 

(38) 


Ch.  Ill)        WHO  MAY  APPLY  FOR   REVIEW  OF  A  JUDGMENT  §  23 

elusion  any  suit  or  action,  or  a  writ  of  error,  or  an  appeal  to  the  circuit  court 
of  appeals,  or  to  the  Supreme  Court  in  such  suit  or  action,  including  all 
appellate  proceedings,  unless  the  trial  court  shall  certify  in  writing  that,  in  the 
opinion  of  the  court,  such  appeal  or  writ  of  error  is  not  taken  in  good  faith, 
without  being  required  to  prepay  fees  or  costs  or  for  the  printing  of  the  record 
in  the  appellate  court,  or  give  security  therefor,  before  or  after  bringing  suit  or 
action,  or  upon  suing  out  a  writ  of  error  or  appealing  upon  filing  in  said  court  a 
statement  under  oath  in  writing  that  because  of  his  poverty  he  is  unable  to  pay 
the  costs  of  said  suit  or  action  or  of  such  writ  of  error  or  appeal,  or  to  give  security 
for  the  same,  and  that  he  believes  that  he  is  entitled  to  the  redress  he  seeks  by 
such  suit  or  action  or  writ  of  error  or  appeal,  and  setting  forth  briefly  the  nature 
of  his  alleged  cause  of  action  or  appeal. "      (27  St.  252,  36  St.  866. 

Seamen's  Suits. 

By  an  amendment,  Act  July  I,  1916,  the  act  was  extended  to 
seamen's  suits  for  wages  or  salvage  or  to  enforce  laws  made  for 
their  health  or  safety. 

The  26.  section  provides  for  permission  to  proceed  as  a  poor 
person  after  commencement  of  suit.  The  3d  governs  the  con- 
duct of  court  officers  in  cases  coming  under  the  statute.  The 
4th  authorizes  the  appointment  by  the  court  of  an  attorney  to 
represent  poor  persons  "if  it  deems  the  cause  worthy  of  a  trial," 
and  empowers  the  court  at  any  stage  after  permitting  proceed- 
ings as  a  poor  person  to  dismiss  the  suit  "if  it  be  made  to  ap- 
pear that  the  allegation  of  poverty  is  untrue,  or  if  said  court 
be  satisfied  that  the  alleged  cause  of  action  is  frivolous  or 
malicious."  The  5th  and  last  section  points  out  the  man- 
ner of  entering  judgment  concerning  costs  in  cases  under  the 
statute. 

Prior  to  the  amendment  of  19 10,  on  the  face  of  the  statute 
three  things  were  certain :  (a)  that  the  statute  imposed  no  im- 
perative duty  to  grant  a  request  to  proceed  as  a  poor  person,  but 
merely  conferred  authority  to  do  so  when  the  fact  of  poverty 
was  established  and  the  case  was  found  not  to  be  frivolous; 
that  is,  was  considered  to  be  sufficiently  meritorious  to  justify 
the  allowance  of  the  request;  (b)  that  there  was  no  power  to 
grant  such  a  request  when  made  by  a  defendant;  and  (c)  that 
there  was  also  no  authority  to  allow  a  party  to  proceed  as  a  poor 

(39) 


Ch.  Ill)         WHO  MAY   APPLY   FOR   REVIEW   OF   A  JUDGMENT  §  23 

person  in  appellate  proceedings  in  the  Supreme  Court  or  the 
Circuit  Courts  of  Appeals. x 

(b)  Construction  of  Statute. 

Clarifying  the  1st  section  as  amended  by  these  considerations, 
it  becomes  clear  that  the  sole  change  operated  by  the  amend- 
ment was  to  bring  defendants  within  the  statute,  and  to  extend  its 
provisions  so  as  to  embrace  first,  proceedings  on  application  for  the 
allowance  of  a  writ  of  error  or  appeal  to  the  Supreme  Court  and 
the  Circuit  Court  of  Appeals,  and,  second,  the  appellate  proceed- 
ings in  such  courts.  This  being  true,  it  is  clear  that  as  to  the 
new  subjects,  the  allowance  of  the  right  in  those  cases  was  made 
to  depend  upon  the  exercise  of  the  same  discretion  as  to  the 
meritorious  character  of  the  cause  to  the  same  extent  provided 
under  the  statute  before  amendment. 2 

"  Kinney  v.  Plymouth  Rock  Squab  Company,  236  U.  S.  43,  59  L.  Ed.  457, 
35  S.  C.  236;  Bradford  v.  Southern  R.  Co.,  195  U.  S.  243,  49  L.  Ed.  178,  25  Sup.  Ct. 
Rep.  55. 

3  Kinney  v.  Plymouth  Rock  Squab  Co.  236  U.  S.  43,  59  L.  Ed.  457,  35  S.  C.  236. 


(40) 


Ch.  IV) 


WHAT   CONSTITUTES    REVERSIBLE   ERROR 


CHAPTER  IV 
What  Constitutes  Reversible  Error 


Sec. 
1. 
2. 


3. 

4. 

5. 
6. 


9. 

10. 

11. 

12. 


13. 


14. 
15. 


16. 

17. 
18. 

19. 
20. 


Sec. 
Reversal  on  error  limited.  21. 

On  trial  by  jury,  weight  of  evidence 

not  reviewed — Remarks  of  the 

Court.  22. 

Review  confined  to  questions  of  law.      23. 
Scope  of  inquiry  in  trial  before  the 

court.     The  evidence.  24. 

Conclusions  of  law  not  conclusive.      25. 
Review  of  record  in  Deportation  and 

Habeas  Corpus  cases.  26. 

Granting    or    refusing    new   trail. 

Refusal  to  entertain  motion.  27. 

Excluding  affidavits  on  motion  for 

new  trail. 
Refusal  to  exercise  discretion.  28. 

Injury  to  appellant  as  result  of  error      29. 

in  record  presumed. 
Reversal  on  court's  own  motion.  30. 

Criminal     cases.     The     reviewing 

court  may  notice  plain  error  in      31. 

charge  without  objection. 
Errors  not  jurisdictional  not  con-      32. 

sidered  unless  raised  below.  33. 

(a)  Exception.  34. 
Misjoinder  must  be  raised  below. 
Rulings  on  amendments  of  plead-      35. 

ings.     (a)  Not  bound  to  follow 
state  practice. 

(b)  During  trial. 

Defect  in  pleading  must  be  raised      36. 

below.  37. 

Practice  on  demurrer  or  Motion  to 

dismiss.  38. 

Insufficiency    of    evidence  waived 

by    defendant     by     introducing      39. 

evidence. 
When  insufficiency  of  evidence  is      40. 

not  waived. 
Objections  to  evidence,  how  made.      41. 


Objections  to  evidence  in  equity  and 
admiralty  appeals.  Rule  of  prac- 
tice. 

Error  in  excluding  material  evidence. 

Motion  to  withdraw  case  from 
jury — when  to  be  made. 

Review  of  directed  verdict. 

Error  in  instructing  jury — Excep- 
tion necessary. 

The  Court  need  not  follow  language 
of  requested  charge. 

Judge  may  express  an  opinion  on 
evidence, 
(a)  Exception. 

Singling  out  facts  prohibited. 

Function  of  trial  judge  in  charging 
the  jury. 

Verdict  of  guilty  cannot  be  directed 
in  criminal  cases. 

Every  question  of  fact  must  be 
submitted  to  jury. 

Reasonable  interpretation  of  charge. 

Charge  must  be  considered  as  a  whole . 

Charge  must  be  preserved  in  bill  of 
exceptions. 

Improper  comments  of  District 
Attorney — Objections  thereto. 

(a)  Good  character. 

(b)  Privilege  of  defendant. 

Excessive  damages  not  reviewable. 

Criminal  Verdicts.  Any  count  suffi- 
cient to  sustain. 

Trial  before  the  court.     Limitation 

of  review. 
Common  law  trial  without  jury. 

Limitation  of  review. 
Findings  of  Referee  in  a  common  law 

action  reviewable. 
Misconduct  of  jury. 

(41) 


Ch.  IV)  WHAT  CONSTITUTES    REVERSIBLE   ERROR  §§  1-4 

§  i.  Reversal  on  error  limited. 

"There  shall  be  no  reversal  in  the  Supreme  Court  or  in  a  circuit  court  upon 
a  writ  of  error,  for  error  in  ruling  any  pica  in  abatement,  other  than  a  plea  to  the 
jurisdiction  of  the  court,  or  for  any  error  in  fact. "     (Rev.  Stat,  of  U.  S.,  §  1011.) 

§  2.  On  trial  by  jury,  weight  of  evidence  not  reviewed — Remarks 
of  the  Court. 

Whether  the  verdict  in  a  common  law  action  was  contrary  to  the 
evidence  cannot  be  considered  on  review  on  a  writ  of  error,  if  there 
was  any  evidence  proper  to  go  to  the  jury  in  support  of  the  verdict. r 

Remarks  of  the    Court  in  the  presence  of  the  jury  will  not 
be  reviewed  unless  excepted  to  at  the  time.* 
§  3.  Review  confined  to  questions  of  law. 

The  right  to  review  under  the  above  section,    1011  of  the 
Rev.  Stat,  of  U.  S.,  is  limited  to  questions  of  law.3 
§  4.  Scope  of  inquiry  in  trial  before  the  court.    The  evidence. 

If  a  complete  transcript  of  the  evidence  is  duly  preserved,  the 
court  will  examine  it  for  the  purpose  of  determining  whether  the 
findings  of  the  court  are  supported  by  competent  evidence  and,  if 
they  are  not,  will  reverse  the  judgment.4 

1  Hoke  v.  U.  S.,  227  U.  S.  30S,  57  L.  Ed.  523,  33  Sup.  Ct.  Reps.  281;  S.  Brewery 
&  Ice  Co.  v.  Schmidt,  226  U.  S.  162,  57  L.  Ed.  170,  33  Sup.  Ct.  Rep.  68;  Miles  v. 
U.  S.,  103  U.  S.  304,  26  L.  Ed.  481;  Crumpton  v.  U.  S.,  138  U.  S.  361,  11  Sup.  Ct. 
Rep.  355,  34  L.  Ed.  958;  Lancaster  v.  Collins,  115  U.  S.  222,  6  Sup.  Ct.  Rep.  33, 29 
L.  Ed.  373;  Carter  v.  Ruddy,  166  U.  S.  493,  17  Sup.  Ct.  Rep.  640,  41  L.  Ed.  1090; 
McDonald  v.  U.  S.,  63  Fed.  426;  Humes  v.  U.  S.,  170  U.  S.  213,  18  Sup.  Ct.  Rep. 
602,  42  L.  Ed.  1011;  Turner  v.  New  York,  168  U.  S.  90,  18  Sup.  Ct.  Rep.  38,  42  L. 
Ed.  392;  Rhodes  v.  Iowa,  170  U.  S.  437,  18  Sup.  Ct.  Rep.  664,  42  L.  Ed.  1088; 
Groat  v.  O'Hara,  154  U.  S.  651,  14  Sup.  Ct.  Rep.  1202,  38  L.  Ed.  1093;  Levis  v. 
Kengla,  169  U.  S.  237,  18  Sup.  Ct.  Rep.  309,  42  L.  Ed.  728;  Streator  v.  Sanitary 
District,  133  Fed.  124,  66  C.  C.  A.  192;  Steever  v.  Rickman,  154  U.  S.  678,  3  Sup. 
Ct.  Rep.  343,  27  L.  Ed.  1052. 

2  Lane  v.Lcster,  237  Fed.  149. 

» Union  Naval  Stores  Co.  v.  United  States,  240  U.  S.  284,  36  Sup.  Ct.  Rep.  308, 
60  L.  Ed.  644;  N.  Y.  Central  &  Hudson  River  R.  R.  Co.  v.  Fraloff,  100  U.  S.  24,  25 
L.  Ed.  531;  ^Etna  Ins.  Co.  v.  Ward,  140  U.  S.  76,  11  Sup.  Ct.  720,  35  L.  Ed.  371; 
Walker  Mfg.  Co.  v.  Knox,  136  U.  S.  333;  Stevenson  v.  Barber,  140  U.  S.  48,  11 
Sup.  Ct.  Rep.  690,  35  L.  Ed.  338;  Lehnen  v.  Dickson,  148  U.  S.  73;  13  Sup.  Ct.  Rep. 
481,  37  L.  Ed.  373. 

<  S-ling  v.  Bollander,  125  Fed.  704,  60  C.  C.  A.  472;  Conners  v.  U.  S.,  141  Fed.  16, 
72  C.  C.  A.  275;  Collier  v.  U.  S.,  173  U.  S.  79,  19  Sup.  Ct.  Rep.  330,  43  L.  Ed.  621; 

(42) 


Ch.  IV)  WHAT  CONSTITUTES    REVERSIBLE   ERROR  §§  5~7 

§  5.  Conclusions  of  law  not  conclusive. 

But  conclusions  of  law  interwoven  with  questions  of  fact  are 
not  conclusive  upon  the  reviewing  court.1 
§  6.  Review  of  record  in  deportation  and  habeas  corpus  cases. 

The  record  will  be  reviewed  in  deportation  cases  of  Chinese 
laborers  for  the  purpose  of  ascertaining  whether  it  contains  com- 
petent evidence  to  sustain  the  order. 2  And  for  the  same  purpose 
the  evidence  will  also  be  reviewed  in  habeas  corpus  cases. 3 
§  7.  Granting  or  refusing  new  trial.  Refusal  to  entertain 
motion. 

The  granting  or  denial  of  a  motion  for  new  trial  rests  very 
largely  in  the  judicial  discretion  of  the  trial  court,  and  it  is  not 
ordinarily  reviewable  upon  writ  of  error. 4 

But  where  the  court  refuses  to  entertain  and  consider  and 
pass  upon  the  matters  urged  by  a  defeated  party  as  grounds  for 
a  new  trial  error  may  be  assigned.5 


Lang  v.  Rigney,  160  U.  S.  531,  40  L.  Ed.  525,  16  Sup.  Ct.  Rep.  366;  King  v.  Smith, 
110  Fed.  98,  49  C.  C.  A.  49;  U.  S.  v.  Bishop,  125  Fed.  183,  60  C.  C.  A.  125;  Phcsnix 
Insurance  Co.  v.  Kerr,  129  Fed.  724,  64  C.  C.  A.  252. 

1  Mason  v.  U.  S.,  219  Fed.  547;  The  Brittania  v.  Cleugh,  153  U.  S.  130, 14  Sup. 
Ct.  Rep.  795,  38  L.  Ed.  660. 

2  Gegiow  v.  Uhl,  239  U.  S.  3,  36  Sup/  Ct.  Rep.  2,  60  L.  Ed.  114;  Tom  Hong  v. 
U.  S.,  193  U.  S.  517,  24  Sup.  Ct.  Rep.  517,  48  L.  Ed.  772;  In  re  United  States,  194 
U.  S.  194,  24  Sup.  Ct.  Rep.  629,  48  L.  Ed.  931. 

3  Frank  v.  Mangum,  237  U.  S.  309,  35  Sup.  Ct.  Rep.  582,  59  L.  Ed.  969;  In  re 
Neagle,  135  U.  S.  1,  10  Sup.  Ct.  Rep.  658,  34  L.  Ed.  55;  Tang  v.  U.  S.,  140  U.  S. 
677,  11  Sup.  Ct.  Rep.  1018,  35  L.  Ed.  603;  In  .re  Morrissey,  137  U.  S.  158, 11 
Sup.  Ct.  Rep.  57,  34  L.  Ed.  645. 

4  Smith  v.  U.  S.,  219  Fed.  25;  McDonald  v.  Pless,  238  U.  S.  264,  35  Sup.  Ct. 
Rep.  783,  59  L.  Ed.  1300;  Humes  v.  U.  S.,  170  U.  S.  213, 18  Sup.  Ct.  Rep.  602, 42  L.  Ed. 
101 1 ;  Newcomb  v.  Wood,  97  U.  S.  581-533, 24  L.  Ed.  1085;  Mattox  v.  United  States, 
146  U.  S.  140-146, 13  Sup.  Ct.  50,  36  L.  Ed.  917;  Moore  v.  United  States,  150  U.  S.  57, 
14  Sup.  Ct.  26, 37  L.  Ed.  996;  Holder  v.  United  States,  150  U.  S.  91,  14  Sup.  Ct.  10,  37 
L.  Ed.  1010;  Blitz  v.  United  States,  153  U.  S.  308,  14  Sup.  Ct.  924,  38  L.  Ed.  725; 
Wheeler  v.  United  States,  159  U.  S.  523,  16  Sup.  Ct.  93,  40  L.  Ed.  244;  Clune  v. 
United  States,  159  U.  S.  590,  16  Sup,  Ct.  125,  40  L.  Ed.  269. 

s  Mattox  v.  United  States,  146  U.  S.  140,  13  Sup.  Ct.  Rep.  50,  36  L.  Ed.  917; 
Felton  v.  Spiro,  78  Fed.  576, 24  C.  C.  A.  321 ;  Benedetto  v.  Reno  Collar  Co.,  216  Fed. 
143  (C.  C.  A.  7th  Cir.). 

(43) 


Ch.  IV)  WHAT  CONSTITUTES   REVERSIBLE   ERROR  §§   8-12 

§  8.  Excluding  affidavits  on  motion  for  new  trial. 

The  exclusion  of  affidavits  on  a  motion  for  new  trial  may  be 
assigned  as  error  where  due  exception  is  taken.1 
§  9.  Refusal  to  exercise  discretion. 

Where  the  court  refuses  to  exercise  a  lawful  discretion  in  a 
case,  error  may  be  assigned. 2 
§10.  Injury  to  appellant  as  result  of  error  in  record  presumed. 

An  error  in  the  record  is  presumptively  injurious  to  the  party 
against  whom  it  was  committed,  unless  it  appears  beyond  a  doubt 
that  the  error  did  not  and  could  not  prejudice  the  right  of  the  party. 3 
§  11.  Reversal  on  court's  own  motion. 

The  reviewing  court  may  of  its  own  motion  reverse  a  decree 
in  equity  and  direct  further  proofs  to  be  taken  to  avoid  a  gross 
injustice.4 

§  12.  Criminal  cases— the  reviewing  court  may  notice  plain  error 
in  charge  without  objection. 

In  criminal  cases  courts  are  not  inclined  to  be  as  exacting, 
with  reference  to  the  specific  character  of  the  objection  made,  as 
in  civil  cases.  They  will,  in  the  exercise  of  a  sound  discretion, 
sometimes  notice  error  in  the  trial  of  a  criminal  case,  although  the 
question  was  not  properly  raised  at  the  trial  by  objection  and 
exception. 5 

1  Mattox  v.  U.  S.,  146  U.  S.  140, 13  Sup.  Ct.  Rep.  50,  36  L.  Ed.  917;  Smith  v. 
U.  S.,  219  Fed.  25. 

'  Rosaly,  widow  of  Rarbaumer  v.  Frazier,  227  U.  S.  584,  33  Sup.  Ct.  Rep.  333, 
57  L.  Ed.  655;  Haws  v.  Victoria  Copper  Min.  Co.,  160  U.  S.  303,  16  Sup.  Ct.  Rep. 
282,  40  L.  Ed.  436. 

i  Kanawha  &  Mich.  R.  R.  Co.  v.  Kerse,  239  U.  S.  576,  36  Sup.  Ct.  Rep.  174,  60 
L.  Ed.  448;  Williams  v.  U.S.,  158  Fed.  30;  Vicksburg  R.  R.  Co.  v.  O'Brien,  119  U.  S. 
99,  7  Sup.  Ct.  Rep.  118,  30  L.  Ed.  299;  Nat.  Biscuit  Co.  v.  Nolan,  138  Fed.  9 ;  Starr  v. 
U.  S.,  153  U.  S.  614,  14  Sup.  Ct.  Rep.  919,  38  L.  Ed.  841;  Coffin  v.  U.  S.,  156 
U.  S.  432,  15  Sup.  Ct.  Rep.  394,  39  L.  Ed.  481. 

*  Chicag.  Junction  R.  R.  Co.  v.  King,  222  U.  S.  222,  32  Sup.  Ct.  Rep.  79,  56  L. 
Ed.  173;  Holden  v.  Circleville  L.  &  P.  Co.,  216  Fed.  490;  Barber  v.  Coit,  118  Fed. 
272,  55  C.  C.  A.  145. 

s  Crawford  v.  United  States,  212  U.  S.  183,  53  L.  Ed.  465;  Clyatt  v.  United  States, 
197  U.  S.  207,  25  Sup.  Ct.  Rep.  429,  49  L.  Ed.  726;  Wiborg  v.  United  States,  163 

(44) 


Ch.  IV)  WHAT  CONSTITUTES   REVERSIBLE   ERROR  §§  13-15 

§  13.  Errors  not  jurisdictional  not  considered  unless  raised  below. 

It  is  the  settled  law  in  the  national  appellate  tribunals  that 
errors  not  involving  anything  fundamental  or  jurisdictional  which 
were  not  presented  to  the  consideration  of  the  lower  courts  will  be 
regarded  as  waived  and  will  be  passed  without  further  notice. T 

(a)  Legal  issues  other  than  those  specifically  presented  for 
determination  may  properly  be  considered  and  decided  by  an 
Appellate  Court  where  they  naturally  aiise  and  are  pertinent  to 
the  questions  at  issue  and  to  further  proceedings  in  the  trial  court.  * 
§  14.  Misjoinder  must  be  raised  below. 

The  point  of  misjoinder  of  parties  or  causes  of  action,  if  not 
urged  in  the  trial  court,  will  not  be  considered  on  review.3 
§15.  Rulings  on  amendments  of  pleadings. 

It  has  uniformly  been  held  that  the  allowance  or  refusal  of 
leave  to  amend  pleadings  in  actions  at  law  is  discretionary  with 
the  trial  court,  and  that  its  action  is  not  reviewable  except  in  case 
of  gross  abuse  of  discretion.4 

(a)  Nor  is  the  Federal  Court  bound  to  follow  the  practice  pre- 
vailing in  the  State  Court  upon  the  question  of  allowing  amend- 
ments. s 

(b)  In  the  absence  of  abuse  of  discretion,  the  Appellate  Court 


U.S.  633,  16  Sup.  Ct.  Rep.  1127,  1197,  41  L.  Ed.  289;  Williams  v.  United  States,  158 
Fed.  30;  Weems  v.  United  States,  217  U.  S.  349,  54  L.  Ed.  793. 

'Magruder  v.  Drury,  235  U.  S.  106,  35  Sup.  Ct.  Rep.  77,  59  L.  Ed.  151; 
Montana  R.  R.  Co.  v.  Warren,  137  U.  S.  348,  11  Sup.  Ct.  Rep.  96,  34  L.  Ed. 
681;  Gila  Valley  G.  &  N.  R.  R.  v.  Hall,  232  U.  S.  94,  34  Sup.  Ct.  Rep.  229,  58 
L.  Ed.  521. 

1  Phil.  Casualty  Co.  v.  Fechheimer,  220  Fed.  401,  Collin  County  Natl.  Bank  v. 
Hughes,  155  Fed.  389,  83  C.  C.  A.  661;  Guaranty  Trust  Co.  v.  Koehler,  195  Fed.  669. 

i  Historical  Pub.  Co.  v.  Jones  Bros.  Pub.  Co.,  231  Fed.  638. 

«  Lieburg  v.  Matthews,  216  Fed.  1;  Chapman  v.  Barney,  129  U.  S.  677,  9  Sup. 
Ct.  Rep.  426,  32  L.  Ed.  800;  Gormley  v.  Bunyan,  138  U.  S.  623,  11  Sup.  Ct.  453,  34 
L.  Ed.  1086;  Montana  Mining  Co.  v.  St.  Louis  Min.  &  Mill  Co.,  78  C.  C.  A.  33,  147 
Fed.  897;  Lange  v.  Union  Pac.  R.  Co.,  62  C.  C.  A.  48,  126  Fed.  338;  Dunn  v.  Mayo 
Mills,  67  C.  C.  A.  450,  134  Fed.  804;  Truckee  River  Gen.  Elec.  Co.  v.  Benner,  211 
Fed.  79  (C.  C.  A.). 

s  Truckee  River  Gen.  Elec.  Co.  v.  Benner,  211  Fed.  80  (C.  C.  A.). 

(45) 


Ch.  IV)  WHAT  CONSTITUTES   REVERSIBLE   ERROR  §§  16-19 

will  not  reverse  a  cause  for  failure  to  grant  or  refuse  leave  to 

amend  a  pleading  duiing  the  trial. r 

§  16.  Defect  in  pleading  must  be  raised  below. 

Unless  the  court's  attention  has  been  specially  called  to  a 
defective  pleading,   an  appellate  tribunal  will  not  notice  the 
alleged  error  on  appeal. 2 
§  17.  Practice  on  demurrer  or  motion  to  dismiss. 

The  Appellate  Court  cannot  consider  anything  which  is  not 
contained  in  the  bill  and  the  exhibits  which  are  annexed  to  it,  and 
it  cannot  look  into  anything  otherwise  presented,  such  as  the  files 
and  records  in  another  case,  or  any  other  proceedings  in  any 
court  for  the  purpose  of  determining  the  questions  arising  on  the 
demurrers  to  the  bill.3 

This  practice  by  analogy  is  undoubtedly  the  same  under  the 
new  equity  rules  abolishing  demurrers  and  substituting  in  lieu 
thereof  a  motion  to  dismiss. 

§  18.  Insufficiency  of  evidence  waived  by  defendant  by  intro- 
ducing evidence. 

The  point  that  evidence  of  the  plaintiff  or  prosecution  wras 
insufficient  to  justify  the  court  in  submitting  the  cause  to  the 
jury  is  waived  by  the  introduction  of  evidence  for  the  defendant.4 
§  19.  When  insufficiency  of  evidence  is  not  waived. 

But  such  waiver  does  not  affect  the  right  of  defendant  to 
have  the  sufficiency  in  law  of  the  entire  evidence  considered 

1  Incorporated  Town  of  Stonewall  v.  Stone,  207  Fed.  540  (C.  C.  A.). 

*  Geo.  A.  Fuller  Co.  v.  McCloskey,  228  U.  S.  194, 33  Sup.  Ct.  Rep.  471,  57  L.  Ed. 
795. 

a  Ward  Baking  Co.  v.  Weber  Bros.,  230  Fed.  142;  Chicago  Great  Western  R.  R. 
Co.  v.  Le  Valley,  233  Fed.  384;  Pacific  R.  R.  Co.  v.  Missouri  Pacific  Ry.  Co.,  Ill 
U.  S.  505,  4  Sup.  Ct.  Rep.  583,  28  L.  Ed.  498;  Richardson  v.  Loree,  94  Fed.  375 
(C.  C.  A.  5th  Cir.). 

*  Accident  Ins.  Co.  v.  Crandall,  120  U.  S.  527,  7  Sup.  Ct.  Rep.  685,  30  L.  Ed. 
740,  530;  Kasle  v.  U.  S.,  233  Fed.  878  (C.  C.  A.);  Sandals  v.  United  States,  213  Fed. 
571;  Tucker  v.  U.  S.,  224  Fed.  833,  140  C.  C.  A.  279;  Gould  v.  United  States,  209 
Fed.  730;  Simpson  v.  United  States,  184  Fed.  817;  Leyer  v.  United  States,  183  Fed. 
102;  Burton  v.  United  States,  142  Fed.  57;  Goldman  v.  United  States,  220  Fed.  57; 
Clyatt  v.  United  States,  197  U.  S.  207,  25  Sup.  Ct.  Rep.  429,  49  L.  Ed.  728. 

(46) 


Ch.  IV)  WHAT  CONSTITUTES   REVERSIBLE   ERROR  §§  20-23 

upon  the  motion  to  direct  a  verdict  made  at  the  close  of  all  the 

testimony. x 

§  20.  Objections  to  evidence  —how  made. 

The  rule  is  that  the  party  objecting  to  the  introduction  of 
evidence  must  state  specifically  his  objection  thereto  and.  that  a 
general  objection  is  insufficient.  This  rule,  however,  has  no 
application  where  the  impropriety  of  the  evidence  is  manifest.3 
§  21.  Objections  to  evidence  in  equity  and  admiralty  appeals. 
Rule  of  practice. 

Rule  13  of  the  general  rules  of  the  U.  S.  Supreme  Court 
provides : 

"In  all  cases  of  equity  or  admiralty  jurisdiction,  heard  in  this  court,  no  objec- 
tion shall  hereafter  be  allowed  to  be  taken  to  the  admissibility  of  any  deposition, 
deed,  grant,  or  other  exhibit  found  in  the  record  as  evidence,  unless  objection 
was  taken  thereto  in  the  court  below  and  entered  of  record ;  but  the  same  shall 
otherwise  be  deemed  to  have  been  admitted  by  consent." 

Identical  with  Rule  12  of  the  U.  S.  Circuit  Court  of  Appeals 
for  the  2d  Circuit.     The  rule  in  all  other  Circuits  is  the  same. 
§  22.  Error  in  excluding  material  evidence. 

Where  it  clearly  appears  from  the  record  that  the  evidence 
offered  and  excluded  was  competent  and  of  such  materiality  and 
weight  that  its  exclusion  might  have  caused  injury  to  the  party 
offering  the  same,  nothing  further  or  more  formal  is  required.3 
§  23.  Motion  to  withdraw  case  from  jury — when  to  be  made. 

If  assignments  of  error  are  to  be  based  upon  the  legal  suffi- 
ciency of  the  evidence  to  support  a  verdict,  motions  to  that  end 
must  be  made  at  the  conclusion  of  the  evidence  and  exceptions 
preserved  to  adverse  rulings  thereon.4 

*  Kasle  v.  United  States,  233  Fed.  878  (C.  C.  A.  6th  Cir.) ;  Tucker  v.  United 
States,  224  Fed.  833, 837, 140  C.  C.  A.  279  (C.  C.  A.  6th  Cir.). 

*  Grandison  v.  Robertson  (C.  C.  A.  2d  Cir.),  231  Fed.  785. 

3  Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Phipps  (C.  C.  A.),  125  Fed.  478-480,  60  C.  C.  A. 
314;  Briggs  v.  Chicago  &  N.  W.  Ry.  Co.  (C.  C.  A.),  125  Fed.  745,  60  C.  C.  A.  513; 
Owl  Creek  Coal  Co.  v.  Goleb,  210  Fed.  209. 

4  Mexico  International  Land  Co.  v.  Larkin,  195  Fed.  495;  Missouri  Pac.  Ry.  Co.  v. 
Chicago  &  Alton  R.  R.  Co.,  132  U.  S.  191,  10  Sup.  Ct.  65,  33  L.  Ed.  309;  Potter  v., 

(47) 


Ch.  IV)  WHAT  CONSTITUTES    REVERSIBLE   ERROR  §  24 

§  24.  Review  of  directed  verdict. 

Where  a  motion  for  a  directed  verdict  is  interposed  by  both 
parties  to  the  litigation,  the  case  becomes  one  of  law  for  the  court 
to  decide.  By  making  such  a  motion  the  parties  waive  the  right 
to  a  verdict  by  the  jury.1 

The  question  presented  in  a  national  appellate  court  on  a 
challenge  of  a  refusal  to  direct  a  verdict  is  not  whether  or  not 
there  is  any  evidence  to  sustain  the  verdict  rendered.  It  is  (1) 
whether  or  not  there  was  substantial  evidence  to  sustain  that 
verdict,  and  (2)  whether  or  not  the  evidence  in  support  of  the 
verdict  requested  was  so  conclusive  that  in  the  exercise  of  a  sound 
judicial  discretion  the  court  should  not  sustain  a  contrary  verdict. 
It  is  the  duty  of  the  trial  court  to  direct  a  verdict  at  the  close  of  a 
trial  when  the  evidence  is  undisputed  and  when,  upon  a  question 
of  fact,  it  is  so  clearly  preponderant  or  of  such  a  conclusive 
character  that  the  court  would  be  bound  in  the  exercise  of  a  sound 
judicial  discretion  to  set  aside  the  verdict  in  opposition  to  it.2 

The  improbability  of  plaintiff's  story  is  a  question  of  fact  for 
the  jury.  The  appellate  tribunal  on  review  of  a  denial  of  motion 
to  direct  verdict  cannot  determine  questions  of  credibility  of 
witnesses,  and  must  take  that  view  of  the  evidence  most  favor- 
able to  the  party  against  whom  the  direction  is  asked.3 

U.  S.,  122  Fed.  49;  Condran  v.  Chicago,  Milwaukee  &  St.  Paul  Ry.  Co.,  67  Fed.  522, 
14  C.  C.  A.  506,  28  L.  R.  A.  749;  Bidwell  v.  Douglas  Trading  Co.,  183  Fed.  93,  105 
C.  C.  A.  385;  McBride  v.  Neal,  214  Fed.  966,  969  (C.  C.  A.). 

1  Stratton's  Independence  v.  Howbert,  207  Fed.  419  (C.  C.  A.). 

a  Canadian  North  Ry.  Co.  v.  Senske,  201  Fed.  637,  644,  120  C.  C.  A.  65,  72; 
Southern  Pacific  Co.  v.  Pool,  160  U.  S.  438,  440,  16  Sup.  Ct.  338,  40  L.  Ed. 
485;  Union  Pacific  R.  R.  Co.  v.  McDonald,  152  U.  S.  262,  2S3,  14  Sup.  Ct.  619,  38 
L.  Ed.  434;  Delaware,  Lackawanna  &  Western  R.  R.  Co.  v.  Converse,  139  U.  S.  469, 
11  Sup.  Ct.  569,  35  L.  Ed.  213;  Patillo  v.  Allen-West  Commission  Co.,  131  Fed.  6S0, 
686,  65  C.  C.  A.  508,  514;  Chicago  Great  Western  Ry.  Co.  v.  Roddy,  131  Fed.  712, 
713,  65  C.  C.  A.  470,  471;  Woodward  v.  Chicago,  Milwaukee  &  St.  Paul  Ry.  Co.,  145 
Fed.  577, 578,  75  C.  C.  A.  591,  592;  Missouri  Pacific  Ry.  Co.  v.  Oleson,  213  Fed.  330. 

J  Erie  R.  R.  Co.  v.  Weber  &  Kraft,  207  Fed.  293  (C.  C.  A.  1,  125  C.  C.  A.  37); 
L.  &  N.  R.  R.  Co.  v.  Bell,  206  Fed.  395  (C.  C.  A.) ;  Worthington  v.  Elmer,  207  Fed. 
308  (C.  C.  A.);  Big  Brushy  Coal  Co.  v.  Williams  (C.  C.  A.  6th  Cir.),  176  Fed.  529, 

(48) 


Ch.  IV)  WHAT  CONSTITUTES   REVERSIBLE  ERROR  §§  25-27 

In  considering  the  question  whether  there  has  been  error  in 
refusing  a  directed  verdic  tfor  the  defendant  in  a  criminal  trial, 
the  reviewing  court  can  inquire  only  whether  there  was  any 
evidence  to  sustain  the  verdict.1 
§  25.  Error  in  instructing  jury — exception  necessary. 

An  erroneous  charge  to  the  jury  is  ground  for  reversal.  But, 
unless  specific  exceptions  were  taken  before  the  jury  retired, 
assignment  of  error  as  to  the  propriety  of  the  charge  will  be 
disregarded. 2  A  construction  on  a  written  instrument  placed  by 
the  Court  in  his  charge  to  the  jury  will  not  be  reviewed  unless  a 
request  to  charge  the  jury  a  certain  way  has  been  made  by  the 
party  complaining  of  the  charge. 3 
§  26.  The  court  need  not  follow  language  of  requested  charge. 

The  court  is  not  bound  to  accept  the  language  which  counsel 
employ  in  framing  instructions,  nor  is  it  bound  to  repeat  instruc- 
tions already  given  in  different  language.4 
§  27.  Judge  may  express  an  opinion  on  evidence. 

In  the  courts  of  the  United  States,  as  in  the  courts  of  England, 
from  which  our  practice  was  derived,  the  judge,  in  submitting 
the  case  to  the  jury,  may,  at  his  discretion,  whenever  he  thinks  it 
necessary  to  assist  them  in  arriving  at  a  just  conclusion,  comment 
upon  the  evidence,  call  their  attention  to  parts  of  it  which  he 
thinks  important,  and  express  his  opinion  upon  the  facts;  and 
the  expression  of  such  an  opinion,  where  no  rule  of  law  is  in- 
correctly stated,  and  all  matters  of  fact  are  ultimately  sub- 


532, 99  C.  C.  A.  102;  Lake  Shore  Elect.  Co.  v.  Kurtz,  218  Fed.  165  (C.  C.  A.  6th  Cir.) ; 
Sowles  v.  Norcross  Bros.  Co.,  195  Fed.  889  (C.  C.  A.). 

'Hedderly  v.  United  States,  193  Fed.  561,  114  C.  C.  A.  227;  Boren  v.  United 
States,  144  Fed.  801,  75  C.  C.  A.  531;  Cohen  v.  United  States,  214  Fed.  23  (C.  C. 
A.  23);  Crumpton  v.  United  States,  138  U.  S.  363,  11  Sup.  Ct.  Rep.  355,  34  L. 
Ed.  958. 

'Fisher  Mach.  Co.  v.  Dougherty,  231  Fed.  910  (C.  C.  A.). 

sAlverson  v.  Oregon  R.  R.  Co.  &  Nav.  Co.,  236  Fed.  340. 

4Blanton  v.  U.  S.,  213  Fed.  320;  Agnew  v.  United  States,  165  U.  S.  36,  17  Sup. 
Ct.  Rep.  235,  41  L.  Ed.  624;  Ayers  v.  Watson,  113  U.  S.  594,  5  Sup.  Ct.  Rep.  641, 
28  L.  Ed.  1093 ;  Grand  Trunk  v.  Ives,  144  U.  S.  408, 12  Sup.  Ct.  Rep.  679, 36  L.  Ed.  485. 

4  (49) 


Ch.  IV)  WHAT   CONSTITUTES    REVERSIBLE    ERROR  §§  28~29 

mitted  to  the  determination  of  the  jury,  cannot  be  reviewed  on 
writ  of  error. l 

(a)  But  this  rule  is  subject  to  the  qualification  that  the  trial 
judge  must  not  usurp  the  functions  of  a  jury.2 

The  following  language  used  by  Judge  Hook  in  Rudd  v. 
United  States,  173  Fed.  914,  97  C.  C.  A.  462,  was  approved  in  the 
Sandals  case,  supra: 

"We  do  not  mean  to  impair  in  any  degree  the  right  of  a  trial  court  in  both 
civil  and  criminal  cases  to  comment  upon  the  facts,  to  express  its  opinion  upon 
them,  and  to  sum  up  the  evidence,  for  that  is  one  of  the  most  valuable  features 
of  the  practice  in  the  courts  of  the  United  States.  A  judge  should  not  be  a  mere 
automatic  oracle  of  the  law,  but  a  living  participant  in  the  trial,  and  so  far  as 
the  limitations  of  his  position  permit  should  see  that  justice  is  done.  But  his 
comments  upon  the  facts  should  be  judicial  and  dispassionate,  and  so  carefully 
guarded  that  the  jurors,  who  are  the  triers  of  them,  may  be  left  free  to  exercise 
their  independent  judgment."3 

The  Court  should  take  care  to  separate  the  law  from  the  facts, 
and  to  leave  the  latter  in  unequivocal  terms  to  the  judgment  of 
the  jury  as  their  true  and  peculiar  province. 4 
§  28.  Singling  out  facts  prohibited. 

An  instruction  must  not  single  out  and  declare  the  effect  of 
certain  facts  without  consideration  of  other  modifying  facts. s 
§  29.  Function  of  trial  judge  in  charging  the  jury. 

Judge  Sprague  in  United  States  v.  1363  Bags  of  Merchandise, 
2  Spr.  85,  Fed.  Cas.  No.  15,964,  in  language  approved  by  the 
Supreme  Court  of  the  United  States  in  Capital  Traction  Co.  v. 

1  Smith  v.  St.  Louis,  214  Fed.  737;  Young  v.  Carrigan,  210  Fed.  442;  Smith  v. 
United  States,  157  Fed.  721;  United  States  v.  Reading  Ry.,  123  U.  S.  113,  8  Sup.  Ct. 
Rep.  77,  31  L.  Ed.  138. 

»  Sandals  v.  United  States,  213  Fed.  569  (C.  C.  A.). 

»  See,  also,  Sandals  v.  U.  S.,  213  Fed.  563;  Hickory  v.  United  States,  160  U.  S. 
408,  424,  425,  16  Sup.  Ct.  327,  40  L.  Ed.  474  (opinion  by  the  present  Mr.  Chief 
Justice  White);  Mullen  v.  United  States,  106  Fed.  892,  895,  46  C.  C.  A.  22  (C.  C. 
A.  6th  Cir.,  opinion  by  the  present  Mr.  Justice  Day);  Foster  v.  United  States,  188 
Fed.  305,  308,  310,  110  C.  C.  A.  283  (C.  C.  A.  4th  Cir.). 

«  Sandals  v.  U.  S.,  213  Fed.  569;  Starr  v.  United  States,  153  U.  S.  614,  14  Sup. 
Ct.  Rep.  919,  38  L.  Ed.  841. 

»  Perovich  v.  United  States,  205  U.  S.  87,  27  Sup.  Ct.  Rep.  456,  51  L.  Ed.  722. 

(50) 


Ch.  IV)  WHAT   CONSTITUTES   REVERSIBLE   ERROR  §§  30~31 

Hof,  174  U.  S.  1,  19  Sup.  Ct.  580,  43  L.  Ed.  873,  speaks  of  this 
as  follows : 

"The  Constitution  secures  a  trial  by  jury  without  defining  what  that  trial  is. 
We  are  left  to  the  common  law  to  learn  what  it  is  that  is  secured.  Now  the  trial 
by  jury  was,  when  the  Constitution  was  adopted,  and  for  generations  before 
that  time  had  been,  here  and  in  England,  a  trial  of  an  issue  of  fact  by  twelve 
men,  under  the  direction  and  superintendence  of  the  court.  This  direction  and 
superintendence  was  an  essential  part  of  the  trial."1 

§  30.    Verdict  of  guilty  cannot  be  directed  in  criminal  cases. 

It  is  not  competent  for  the  court,  in  a  criminal  case,  to  instruct 
the  jury  peremptorily  to  find  the  accused  guilty  of  the  offense 
charged,  or  of  any  criminal  offense  less  than  that  charged.2 
§  31     Every  question  of  fact  must  be  submitted  to  jury. 

No  question  of  fact  must  be  withdrawn  from  the  determina- 
tion of  those  whose  function  it  is  to  decide  such  issues.  The  line 
which  separates  the  two  provinces  must  not  be  overlooked  by 
the  court.  Care  must  be  taken  that  the  jury  is  not  misled  into  the 
belief  that  they  are  alike  bound  by  the  views  expressed  upon  the 
evidence  and  the  instructions  given  as  to  the  law.  They  must 
distinctly  understand  that  what  is  said  as  to  the  facts  is  only 
advisory;  and  in  no  wise  intended  to  fetter  the  exercise  finally  of 
their  own  independent  judgment.  Within  these  limitations  it  is 
the  right  and  duty  of  the  court  to  aid  them  by  recalling  the 
testimony  to  their  recollection,  by  collating  its  details,  by  suggest- 
ing grounds  of  preference  where  there  is  contradiction,  by  directing 
their  attention  to  the  most  important  facts,  by  eliminating  the 
true  points  of  inquiry,  by  resolving  the  evidence,  however  com- 
plicated ,  into  its  simplest  elements,  and  by  showing  the  bearing 
of  its  several  parts,  and  their  combined  effect,  stripped  of  every 
consideration  which  might  otherwise  mislead  or  confuse  them. 
How  this  duty  shall  be  performed  depends  in  every  case  upon  the 
discretion  of  the  judge.     There  is  none  more  important  resting  on 

1  Approved  in  208  Fed.  438. 

2  Stow  v.  U.  S.,  213  Fed.  25;  Sparf  and  Hansen  v.  United  States,  156  U.  S. 
51,  15  Sup.  Ct.  Rep.  273,  39  L.  Ed.  343. 

(51) 


Ch.  IV)  WHAT  CONSTITUTES    REVERSIBLE   ERROR  §§  32-34 

those  who  preside  at  jury  trials.    Constituted  as  juries  are,  it  is 
frequently  impossible  for  them  to  discharge  their  function  wisely 
and  well  without  this  aid.     In  such  cases,  chance,  mistake,  or 
caprice  may  determine  the  result. r 
§  32.  Reasonable  interpretation  of  charge. 

Instructions  given  by  the  court  at  the  trial  are  entitled  to  a 
reasonable  interpretation,  and  if  the  proposition  as  stated  is  not 
erroneous  they  are  not  as  a  general  rule  to  be  regarded  as  incorrect 
on  account  of  omissions  or  deficiencies  not  pointed  out  by  the 
excepting  party.  Appellate  courts  are  not  inclined  to  grant  a 
new  trial  on  account  of  an  ambiguity  in  the  charge  to  the  jury, 
where  it  appears  that  the  complaining  party  made  no  effort  at 
the  trial  to  have  the  matter  explained.  Requests  for  such  a 
purpose  may  be  made  at  the  close  of  the  charge,  to  call  the 
attention  of  the  judge  to  the  supposed  error,  inaccuracy  or  am- 
biguity of  expression ;  and  where  nothing  of  the  kind  is  done  the 
judgment  will  not  be  reversed,  unless  the  court  is  of  the  opinion 
that  the  jury  were  misled  or  wrongly  directed.3 
§  33.  Charge  must  be  considered  as  a  whole. 

Each  portion  of  the  charge  to  the  jury  must  be  considered  in 
its  relation  to  the  entire  charge. 3 
§  34.  Charge  must  be  preserved  in  bill  of  exceptions. 

The  giving  and  refusing  of  instructions  cannot  be  reviewed 
unless  the  evidence  is  preserved  by  a  bill  of  exceptions.4 

*  U.  S.  v.  Oppenheim,  228  Fed.  220;  Nudd  v.  Burrows,  91  U.  S.  426,  23  L.  Ed. 
286;  Knight  v.  Illinois  Central,  180  Fed.  372. 

a  United  States  v.  U.  S.  Fidelity  &  Guaranty  Co.,  236  U.  S.  512,  35  Sup.  Ct. 
Rep.  298,  59  L.  Ed.  696;  Phil.  Cas.  Co,  v,  Fechheimer,  220  Fed.  401;  Spring  Co.  v. 
Edgar,  99  U.  S.  659, 25  L.  Ed.  487;  Castle  v.  Bullard,  23  How.  172, 1S9,  16  L.  Ed.  424; 
Carver  v.  Jackson,  4  Pet.  1, 80, 7  L.  Ed.  761 ;  Allis  v.  United  States,  155  U.  S.  117,  121, 
15  Sup.  Ct.  Rep.  36,  39  L.  Ed.  91;  Beaver  v.  Taylor,  et  al,  93  U.  S.  46,  55,  23  L. 
Ed.797. 

3  MacKenzie  v.  U.,  S.  209  Fed.  289;  White  v.  Van  Horn,  159  U.  S.  3,  19, 15  Sup. 
Ct.  Rep.  1027,  40  L.  Ed.  55. 

<Duluth  St.  Ry.  Co.  v.  Speaks,  204  Fed.  573,  123  C.  C.  A.  99;  Robinson  v. 
Stearns,  204  Fed.  772,  123  C.  C.  A.  222;  Cooper  River  Ry.  Co.  v.  Reedcr,  211  Fed. 
2S0,  127  C.  C.  A.  648. 

(52) 


Ch.  IV)  WHAT  CONSTITUTES   REVERSIBLE   ERROR  §§  35-37 

§  35.  Improper  comments  of  district  attorney — objections  thereto. 

It  is  the  duty  of  the  defendant's  counsel  at  once  to  call  the 
attention  of  the  court  to  the  objectionable  remarks  of  the  district 
attorney  which  are  not  fully  justified  by  evidence,  and  request 
its  interposition ;  and,  in  case  of  refusal,  to  note  an  exception.  It 
must  appear,  however,  that  the  matter  objected  to  was  plainly 
unwarranted  and  so  improper  as  to  be  clearly  injurious  to  the 
accused. * 

(a)  The  defendant  is  entitled  to  a  legal  presumption  that  his 
character  is  good.  Where  the  defendant  failed  to  offer  any 
evidence  as  to  his  good  character  it  is  improper  for  the  district 
attorney  to  appeal  to  the  jury  to  assume  that  the  defendant's 
character  is  bad  because  he  failed  to  prove  the  contrary.2 

(b)  The  rule  that  the  neglect,  failure,  or  even  refusal  of  a 
defendant  to  avail  himself  of  his  right  to  testify  shall  not  be 
commented  on,  in  the  event  he  does  not  become  a  witness  in  his 
own  behalf,  is  universal.3 

§  36.  Excessive  damages  not  reviewable. 

The   correction  of  an  excessive  verdict  is  a  question  for 
the  trial  court  on  a  motion  for  a  new  trial,  the  granting  or  re- 
fusing of  which  will  not  be  reviewed  by  the  Federal  appellate 
courts.4 
§  37.  Criminal  verdicts — any  count  sufficient  to  sustain. 

It  is  settled  law  that  in  any  criminal  case  a  general  verdict 
and  judgment  on  an  indictment  or  information  containing  several 
counts  cannot  be  reversed  on  error,  if  any  one  of  the  counts  is 

1  Odell  Mfg.  Co.  v.  Tebbets,  212  Fed.  652;  Higgins  v.  United  States,  185  Fed. 
710;  Chadwick  v.  United  States,  141  Fed.  225;  Crumpton  v.  United  States,  138 
U.  S.  361,  11  Sup.  Ct.  Rep.  355,  34  L.  Ed.  958;  Lowden  v.  United  States,  149  Fed. 
673;  Williams  v.  United  States,  168  U.  S.  382;  18  Sup.  Ct.  Rep.  92,  42  L.  Ed.  509. 

a  Smith  v.  U.  S.,  231  Fed.  35;  Lowden  v.  United  States,  149  Fed.  673;  Higgins  v. 
United  States,  185  Fed.  710;  Demmick  v.  United  States,  121  Fed.  638. 

s  Diggs  v.  United  States,  220  Fed.  545;  Brown  v.  Walker,  161  U.  S.  591, 16  Sup. 
Ct.  Rep.  644,  40  L.  Ed.  819;  United  States  v.  Wetmore,  218  Fed.  237. 

«  Erie  R.  R.  Co.  v.  Winter,  143  U.  S.  61,  12  Sup.  Ct.  356,  36  L.  Ed.  71;  Fitch  v. 
Huff,  218  Fed.  17;  Chesapeake  &  O.  Ry.  Co.  v.  Proffett,  218  Fed.  23  (C.  C.  A.  4th 
Cir.);  Northern  Pacific  R.  R.  Co.  v.  Charles,  51  Fed.  562, 2  C.  C.  A.  380. 

(53) 


Ch.  IV)  WHAT  CONSTITUTES   REVERSIBLE   ERROR  §  38 

good  and  warrants  the  judgment,  because,  in  the  absence  of  any- 
thing in  the  record  to  show  the  contrary,  the  presumption  of  law 
is  that  the  court  awarded  sentence  on  the  good  count  only.1 

The  Federal  courts  have  repudiated  the  technical  doctrine  of 
inconsistency  and  repugnancy  in  verdicts.  In  theory  of  law  each 
count  charges  a  distinct  substantive  offense,  and  the  rinding  of 
the  jury  as  to  a  particular  count  is  independent  of  and  unaffected 
by  the  rinding  upon  any  other  count. 2 

If  the  gravamen  of  the  charge  in  each  count,  on  which  there 
has  been  a  verdict  of  guilty,  is  the  same,  there  is  no  inconsistency 
in  the  verdict.  If  in  contemplation  of  law,  the  legal  effect  of  the 
allegations  in  the  various  counts  on  which  there  has  been  a  verdict 
of  guilty  is  the  same,  the  courts  will  not  upset  the  verdict  on  the 
ground  of  inconsistency,  where  the  only  inconsistency  is  in  respect 
to  immaterial  particulars  concerning  the  means  by  which  the 
crime  was  committed. 3 
§  38.  Trial  before  the  court — limitation  of  review. 

The  Revised  Statutes  provided  as  to  the  Circuit  Courts  as 
follows: 

"  Sec.  648.  The  trial  of  issues  of  fact  in  the  Circuit  Courts  shall  be  by  jury, 
except  in  cases  of  equity  and  of  admiralty  and  maritime  jurisdiction,  and  except 
as  otherwise  provided  in  proceedings  in  bankruptcy." 

"  Sec.  649.  Issues  of  fact  in  civil  cases  in  any  circuit  court  may  be  tried  and 
determined  by  the  court,  without  the  intervention  of  a  jury,  whenever  the  parties 
or  their  attorneys  of  record,  file  with  the  clerk  a  stipulation  in  writing  waiving  a 
jury.  The  finding  of  the  court,  upon  the  facts,  which  may  be  either  general  or 
special,  shall  have  the  same  effect  as  the  verdict  of  a  jury." 


1  Classen  v.  U.  S.,  142  U.  S.  140,  12  Sup.  Ct.  Rep.  169,  35  L.  Ed.  966;  Botsbrd 
v.  U.  S.,  215  Fed.  510  (C.  C.  A.);  Evans  v.  United  States,  153  U.  S.  584,  595,  14 
Sup.  Ct.  934,  38  L.  Ed.  830;  Hocking  Valley  Ry.  Co.  v.  United  States,  210  Fed.  735, 
740  (C.  C.  A.  6th  Cir.) ;  Wesoky  v.  United  States,  175  Fed.  333,  334,  99  C.  C.  A.  121 
(C.  C.  A.  3d  Cir.);  United  States  v.  Lair,  195  Fed.  47,  50,  115  C.  C.  A.  49  (C.  C.  A. 
8th  Cir.) ;  Greene  v.  United  States,  154  Fed.  401,  410,  85  C.  C.  A.  251  (C.  C.  A.  5th 
Cir.). 

a  Walsh  v.  United  States,  174  Fed.  615,  620;  Flickinger  v.  United  States,  150  Fed. 
1,  4,  6,  7;  Harvey  v.  United  States,  159  Fed.  419. 

3  Walsh  v.  United  States,  174  Fed.  615, 620 ;  Flickinger  v.  United  States,  150  Fed.  1. 

(54) 


Ch.  IV)  WHAT  CONSTITUTES    REVERSIBLE   ERROR  §§  39-40 

By  Section  291  of  the  Judicial  Code,  the  above  sections  apply 
to  the  District  Courts.1 

The  review  is  limited  to  errors  of  law  made  during  the  trial 
and  to  the  ascertainment  whether  the  record  contains  any  evi- 
dence to  support  the  findings. 2 
§  39.  Common  law  trial  without  jury — limitation  of  review. 

The  decisions  of  a  court  in  the  trial  of  an  action  at  law  without 
a  jury  upon  the  weight  of  conflicting  evidence  are  not  reviewable 
in  the  national  courts. 3 

Where  a  case  is  tried  by  a  judge,  the  findings  of  fact  by  a  court 
are  conclusive,  unless  there  was  no  evidence  to  support  them.4 

It  is  a  rule  so  well  settled  as  not  to  require  the  citation  of 
authority  that,  when  an  action  at  law  is  tried  by  a  court  upon  a 
written  waiver  of  a  jury,  the  sufficiency  of  the  evidence  to  support 
the  judgment  will  not  be  reviewed  by  an  appellate  court  in  the 
absence  of  a  request  by  the  complaining  party  at  the  close  of  the 
evidence  for  a  finding  or  judgment  in  his  favor  or  special  findings 
by  the  trial  court  of  the  facts  established.  An  opinion  of  the  trial 
judge  analyzing  the  facts  cannot  be  taken  as  a  special  finding. s 
§  40.  Findings  of  referee  in  a  common  law  action  reviewable. 

It  was  at  one  time  questioned  whether  there  could  be  a  review 
in  an  appellate  court  of  the  United  States  where  the  facts  were 
found  by  a  referee  (Boogher  v.  Insurance  Co.,  103  U.  S.  90,  95, 
26  L.  Ed.  310),  but  it  is  now  settled  that  when  a  jury  has  been 
waived  in  writing,  and  the  findings  of  the  referee  have  been  con- 
firmed by  the  trial  court  as  reported  or  as  modified  by  it,  the 
question   whether  the  judgment  rendered   was  warranted  by 


1  Nashville  Interurban  Ry.  Co.  v.  Barnum,  212  Fed.  634. 

2  Nashville  Interurban  Ry.  Co.  v.  Barnum,  212  Fed.  634;  Wilson  v.  Pauly,  72 
Fed.  129. 

3  Gibson  v.  Luther,  196  Fed.  203,  204,  116  C.  C.  A.  35,  36;  Busch  v.  Stromberg 
Telephone  Co.,  217  Fed.  330  (C.  C.  A.). 

«  Hathaway  v.  First  Natl.  Bank,  134  U.  S.  494,  10  Sup.  Ct.  608,  33  L.  Ed.  1004. 
s  Keeley  v.  Ophir  Hill,  etc.,  Co.,  95  C.  C.  A.  96,  169  Fed.  598;  Tiernan  v.  Chicago 
Life  Ins.  Co.,  214  Fed.  241. 

(55) 


Ch.  IV)  WHAT  CONSTITUTES   REVERSIBLE   ERROR  §  40 

the  facts  found  will  be  reviewed  by  the  appellate  court  as  though 
the  findings  were  wholly  made  by  the  trial  court  itself. x 

In  the  Board  of  Commissioners  v.  Sherwood,  11  C.  C.  A.  505, 
64  Fed.  103,  the  court  said: 

"The  record  shows  that  the  circuit  court  'adopted  each  rinding  of  fact  made 
by  the  referee  as  findings  of  fact  made  by  the  court,'  and  in  view  of  that  state- 
ment we  have  treated  the  case  precisely  as  if  it  came  to  this  court  on  a  special 
finding  of  facts  made  by  the  trial  court.  Booghcr  v.  Insurance  Co.,  103  U.  S.  90, 
20  L.  Ed.  310.  The  questions  open  for  review  on  the  writ  of  error  that  has  been 
sued  out  are  those,  and  none  other,  which  might  have  been  reviewed  if  the  trial 
had  actually  taken  place  before  the  court  under  a  written  stipulation  waiving  a 
jury,  and  the  court  had  made  a  special  finding  of  the  facts. " 

When  the  trial  court  has  referred  a  cause  to  a  referee  instead  of 
trying  it  itself,  it  is  important  in  determining  its  power  over  the 
subsequent  proceedings  to  know  whether  the  reference  was  at 
common  law  or  was  under  the  local  practice  of  the  State  where 
the  court  was  held. 

In  Dundee  Mortgage  Co.  v.  Hughes,  124  U.  S.  157,  160, 
8  Sup.  Ct.  377,  378  (31  L.  Ed.  357)  it  was  said: 

"It  is  undoubtedly  true  that  under  a  common-law  reference  the  court  has  no 
power  to  modify  or  to  vary  the  report  of  a  referee  as  to  matters  of  fact.  Its 
only  authority  is  to  confirm  or  reject,  and,  if  the  report  be  set  aside,  the  cause 
stands  for  trial  the  same  as  if  it  had  never  been  referred. " 

On  the  other  hand,  State  statutes  have  frequently  been  re- 
garded as  the  source  of  authority  for  references  of  actions  at  law. 2 

When  there  is  a  written  waiver  of  a  jury,  and  the  cause  has 
been  referred  to  a  referee  under  the  authority  of  a  State  statute, 
the  referee  and  the  trial  court  should  thereafter  follow  the  local 


1  C.  M.  &  St.  P.  R.  Co.  v.  Clark,  178  U.  S.  353,  304, 20  Sup.  Ct.  924,  44  L.  Ed. 
1099. 

2  United  Kansas  Cement  Co.  v.  Harvey,  210  Fed.  310;  Boatmen's  Bank  v.  Trower 
Bros.  Co.,  104  C.  C.  A.  314,  181  Fed.  804;  Dietz  v.  Lymer,  10  C.  C.  A.  71,  01  Fed. 
792,  on  rehearing,  11  C.  C.  A.  410,  03  Fed.  758;  United  States  v.  Ramsey  (C.  C.  A.), 
158  Fed.  488;  Dundee  Mortgage  Co.  v.  Hughes,  supra. 

(56) 


Ch.  IV)  WHAT  CONSTITUTES   REVERSIBLE  ERROR  §  41 

practice  and  modes  of  proceeding  "as  near  as  may  be"  in  accord- 
ance with  the  Conformity  Act  as  generally  construed.1 

§  41.  Misconduct  of  jury. 

In  Mattox  v.  United  States,  146  U.  S.  140,  13  Sup.  Ct.  Rep. 
50,  36  L.  Ed.  917,  it  was  shown  by  affidavits  that,  after  the 
cause  was  submitted  to  the  jury,  a  paper  printed  and  published 
in  the  city  where  the  trial  occurred,  commenting  on  the  trial  and 
unfavorably  upon  the  defendant,  was  introduced  into  the  jury 
room,  and  was  read  by  them.  The  court  excluded  the  affidavits 
and  the  paper  read  by  the  jury,  and  refused  to  consider  them. 
This  was  held  sufficient  to  warrant  a  review,  upon  errors  assigned, 
of  the  action  of  the  trial  court ;  and  the  misconduct  to  be  such  as 
to  warrant  a  new  trial.2 

1  United  States  v.  Ramsey,  158  Fed.  488,  ante;  Tiernan  v.  Chicago  Life  Ins.  Co. 
214  Fed.  241. 

a  See  also  Smith  v.  U.  S.,  231  Fed.  25;  Felton  v.  Spiro,  78  Fed.  576,  581,  582, 24 
C.  C.  A.  321. 


(57) 


Ch.  V) 


APPEALS  DIRECT  TO  U.    S.    SUPREME  COURT 


CHAPTER  V 

Appeals  and  Writs  of  Error  from  U.  S.  District  Court  Direct  to 
U.  S.  Supreme  Court 


Sec.  Sec 

1.  Statutory   provision:  §238   Federal      19. 

Judicial  Code.  20. 

2.  Clause  I.      Jurisdiction      of      the     21. 

Court  in  issue.  22. 

3.  Jurisdictional  amount  not  required. 

4.  "Jurisdiction    of    Court    in    issue"     23. 

means  its  jurisdiction  as  a  Federal     24. 
Court. 

5.  Definition   of   Jurisdiction   by   Mr.     25. 

Justice  Holmes.  26. 

6.  Mere  challenge  of  jurisdiction  not     27. 

sufficient. 

7.  Jurisdictional    claim    by    reason    of 

illegal  service  of  process.  28. 

8.  Affidavits  attached  to  plea  of  juris- 

diction considered  on  appeal.  29. 

9.  Challenging    jurisdiction    as    Court 

of  Equity  insufficient.  30. 

10.  Question  of  venue  reviewable.  31. 

11.  Dismissal  of    bankruptcy   proceed- 

ings for  lack  of  jurisdiction  re- 
viewable. 32. 

12.  Jurisdictional   issue   as    understood     33. 

by  the  parties. 

13.  In  capital  cases,  character  of  crime     34. 

is  test  of  jurisdiction. 

14.  Orders  in  arrest  cases  not  reviewable.      35. 

15.  When  dismissal  order  in  interstate 

commerce  case  reviewable.  36. 

16.  When   no   question   of   jurisdiction 

certified,  not  reviewable. 

17.  When   Supreme  Court   will  review 

the  whole  case.  37. 

18.  Necessity  of  certifying  jurisdictional      38. 

question. 

(58) 


Mode  of  certification. 
What  is  a  sufficient  certification. 
When  certificate  not  required. 
When  decree  is  equivalent  to  certi- 
ficate. 
Time  to  issue  certificate. 
Clause    II.     Prize  causes  review- 
able. 
Amendments  permitted. 
Judgment  or  decree  on  review. 
Clause  III.     When  constitutional 

questions  are  reviewed  exclusively 

by  the  Supreme  Court. 
Substantial    constitutional    question 

a  jurisdictional  prerequisite. 
When  optional  to  appeal  to  Supreme 

Court  or  Court  of  Appeals. 
Cross-appeals. 
Specific  constitutional  question  must 

appear  from  plaintiff's  statement 

of  claim. 
Facts  and  law  must  be  well  pleaded. 
Defendant  may  raise  constitutional 

question  by  answer. 
Entire  case  and  every  question  will 

be  reviewed. 
Constitutional  question  arising  dur- 
ing trial. 
When    constitutional    question    has 

been     decided     pending     appeal. 

Jurisdiction     retained    on     other 

branches  of  case. 
Frivolous   constitutional   questions. 
Clause  IV.   Construction  of  Federal 

treaties  direct  to  Supreme  Court. 


Ch.  V)  APPEALS  DIRECT  TO  U.   S.   SUPREME  COURT  §§  1-2 

Sec.  Sec. 

39.  Issue  must  be  raised  in  court  below.     46.  Cannot  restrain  public  officer  from 

40.  Non-resident  alien  may  raise  ques-  constitutional  act. 

tion.  47.  Supreme  Court  on  review  may  de- 

41.  Clause   V.     When   state   constitu-  termine  every  question. 

tion  or  law  is  contrary  to  U.  S.      48.  Can  review  action  of  State  Public 
Constitution,  direct  appeal  lies.  Utilities  Commission. 

42.  Interlocutory  injunctions.  Juris-     49.  When  injunction  was  refused. 

diction  of  the  Supreme  Court  on  50.  Criminal  Appeals  Act.    Jurisdic- 
direct  appeal  under  the  Act   of  tion  of  Supreme  Court  on  appeal 

March    4,    1913,    restricting    the  by  government, 

issuance.     The  Statute.  51.  Limitation  of  review. 

43.  Appeals  from  interlocutory  injunc-  52.  Indictment  bad  in  law  not  review- 

tions  in  Interstate  Commerce  cases  able. 

under  Act  of  October  22,  1913.  53.  Misconstruction  of  statute  review- 

44.  Jurisdiction  of  Supreme  Court  un-  able. 

der  said  act.  54.  Construction  of  indictment  by  court 

45.  Applies  to  order  by  Administrative  below. 

Board  or  Commission. 

§  i.  Statutory  provision:    §  238.  Federal  Judicial  Code. 

Section  238  of  the  Federal  Judicial  Code  provides: 

"Appeals  and  writs  of  error  may  be  taken  from  the  district  courts,  including 
the  United  States  District  Court  for  Hawaii,  direct  to  the  Supreme  Court  in 
the  following  cases:  (1)  In  any  case  in  which  the  jurisdiction  of  the  court  is  in 
issue,  in  which  case  the  question  of  jurisdiction  alone  shall  be  certified  to  the 
Supreme  Court  from  the  court  below  for  decision;  (2)  from  the  final  sentences 
and  decrees  in  prize  causes;  (3)  in  any  case  that  involves  the  construction  or 
application  of  the  Constitution  of  the  United  States;  (4)  in  any  case  in  which 
the  constitutionality  of  any  law  of  the  United  States,  or  the  validity  or  con- 
struction of  any  treaty  made  under  its  authority  is  drawn  in  question ;  and  (5) 
in  any  case  in  which  the  constitution  or  law  of  a  State  is  claimed  to  be  in  contra- 
vention of  the  Constitution  of  the  United  States."     (36  Stat.  L.  1157.)1 

§  2.    Clause  I :  Jurisdiction  of  the  Court  in  issue. 

"Giving  the  Act  a  reasonable  construction,  taken  as  a  whole,  we  conclude: 

(1)  If  the  jurisdiction  of  the  circuit  [district]  court  is  in  issue  and  decided  in 
favor  of  the  defendant,  as  that  disposes  of  the  case,  the  plaintiff  should  have  the 
question  certified  and  take  his  appeal  or  writ  of  error  directly  to  this  court; 

(2)  if  the  question  of  jurisdiction  is  in  issue,  and  the  jurisdiction  sustained,  and 
then  judgment  or  decree  is  rendered  in  favor  of  the  defendant  on  the  merits, 


1  This  Section  is  a  reenactment  of  Section  5  of  March  3,  1891,  known  as  the 
Circuit  Court  of  Appeals  Act. 

(59) 


Ch.  V)  APPEALS   DIRECT  TO   U.   S.   SUPREME   COURT  §§  3-4 

the  plaintiff,  who  has  maintained  the  jurisdiction,  must  appeal  to  the  circuit 
court  of  appeals,  where  if  the  question  of  jurisdiction  arises  the  circuit  court 
of  appeals  may  certify  it;  (3)  if  the  question  of  jurisdiction  is  in  issue,  and  the 
jurisdiction  sustained,  and  judgment  on  the  merits  is  rendered  in  favor  of  the 
plaintiff,  then  the  defendant  can  elect  either  to  have  the  question  certified  and 
come  directly  to  this  court,  or  to  carry  the  whole  case  to  the  circuit  court  of 
appeals,  and  the  question  of  jurisdiction  can  be  certified  by  that  court;  (4)  if 
in  the  case  last  supposed  the  plaintiff  has  ground  of  complaint  in  respect  of  the 
judgment  he  has  recovered,  he  may  also  carry  the  case  to  the  circuit  court  of 
appeals  on  the  merits,  and  this  he  may  do  by  way  of  cross  appeal  or  writ  of 
error  if  the  defendant  has  taken  the  case  there,  or  independently,  if  the  defend- 
ant has  carried  the  case  to  this  court  on  the  question  of  jurisdiction  alone, 
and  in  this  instance  the  circuit  court  of  appeals  will  suspend  a  decision  upon 
the  merits  until  the  question  of  jurisdiction  has  been  determined;  (5)  the  same 
observations  are  applicable  where  a  plaintiff  objects  to  the  jurisdiction,  and  is, 
or  both  parties  are,  dissatisfied  with  the  judgment  on  the  merits."1 

§  3.  Jurisdictional  amount  not  required. 

A  direct  appeal  may  be  taken  to  the  Supreme  Court  of 
the  U.  S.  from  the  District  Court  on  a  jurisdictional  question 
regardless  of  the  jurisdictional  amount. 

"That  in  all  cases  where  a  final  judgment  or  decree  shall  be  rendered  in  a 
circuit  court  of  the  United  States  in  which  there  shall  have  been  a  question 
involving  the  jurisdiction  of  the  court,  the  party  against  whom  the  judgment 
or  decree  is  rendered  shall  be  entitled  to  an  appeal  or  writ  of  error  to  the  Supreme 
Court  of  the  United  States  to  review  such  judgment  or  decree  without  reference 
to  the  amount  of  the  same;  but  in  cases  where  the  decree  or  judgment  does  not 
exceed  the  sum  of  five  thousand  dollars  the  Supreme  Court  shall  not  review 
any  question  raised  upon  the  record  except  such  question  of  jurisdiction;  such 
writ  of  error  or  appeal  shall  be  taken  and  allowed  under  the  same  provisions  of 
law  as  apply  to  other  writs  of  error  or  appeals  except  as  provided  in  the  next 
following  section."     (25  Stat.  L.  693.)     Act  of  Feb.  25, 1889. a 

§  4.  "  The  jurisdiction  of  the  court  in  issue  "  means  its  juris- 
diction as  a  Federal  Court. 

In  order  to  bring  the  case  on  a  direct  appeal  or  writ  of  error 
to  the  U.  S.  Supreme  Court  under  the  first  clause  of  Sect.  238 
of  the  Judicial  Code,  it  must  appear  from  the  record  that  the 

1  U.  S.  v.  Jahn,  155  U.  S.  109,  15  Sup.  Ct.  Rep.  39,  39  L.  Ed.  87. 
*  For  other  cases  where  jurisdictional  amount  is  not  required,  see  Chapter  IX,  §  6, 
Chapter  VII,  §  12,  Chapter  VIII,  §  17,  and  Chapter  X,  §  2a. 

(60) 


Ch.  V)      APPEALS  DIRECT  TO  U.  S.  SUPREME  COURT  §  5 

jurisdiction  of  the  court  was  challenged  as  a  Federal  Court  and 
not  merely  as  a  Court  of  Equity  or  a  Court  of  Law.1 
§  5.  Definition  of  jurisdiction  by  Mr.  Justice  Holmes. 

In  the  recent  case  of  Lamar  v.  United  States,  240  U.  S.  64, 
36  Sup.  Ct.  Rep.  255,  60  L.  Ed.  526,  Mr.  Justice  Holmes  made 
the  following  observation  relating  to  jurisdiction  of  the  U.  S. 
District  Court  as  a  Federal  Court,  which  would  fall  within  the 
meaning  of  Clause  1  of  Sect.  238  of  the  Federal  Judicial  Code : 

"On  the  matter  of  jurisdiction  it  is  said  that  when  the  con- 
troversy concerns  a  subject  limited  by  Federal  Law,  such  as 
bankruptcy,  Grant  Shoe  Co.  v.  Laird,  212  U.  S.  445,  29  Sup. 
Ct.  Rep.  345,  53  L.  Ed.  591 ;  patents,  Healy  v.  Sea  Gull  Specialty 
Co.,  237  U.  S.  479,  35  Sup.  Ct.  Rep.  658,  59  L.  Ed.  1056,  or 
admiralty,  The  Jefferson,  215  U.  S.  130,  30  Sup.  Ct.  Rep.  54,  54 
L.  Ed.  125,  the  jurisdiction  so  far  coalesces  with  the  merits  that 
a  case  not  within  the  law  is  not  within  the  jurisdiction  of  the 
court.  The  Ira  M.  Hedges,  218  U.  S.  264,  270,  31  Sup.  Ct.  Rep. 
17,  54  L.  Ed.  1039.  Haddock  v.  Haddock,  201  U.  S.  562,  26 
Sup.  Ct.  Rep.  525,  50  L.  Ed.  867.  Jurisdiction  is  a  matter  of 
power  and  covers  wrong  as  well  as  right  decisions.  Fauntleroy 
v.  Lum,  210  U.  S.  230,  234,  235,  28  Sup.  Ct.  Rep.  641,  52  L.  Ed. 
1039.  Burnet  v.  Desmornes,  226  U.  S.  145, 147,  33  Sup.  Ct.  Rep. 
63,  57  L.  Ed.  159.  There  may  be  instances  in  which  it  is  hard 
to  say  whether  a  law  goes  to  the  power  or  only  to  the  duty  of  the 
court." 

1  Louisville  &  N.  R.  Co.  v.  Western  Union  Teleg.  Co.,  234  U.  S.  369,  34  Sup.  Ct. 
Rep.  810,  58  L.  Ed.  1356;  Farrugia  v.  Philadelphia  &  Reading  Ry.  Co.,  233  U.  S. 
352,  34  Sup.  Ct.  Rep.  589,  58  L.  Ed.  996;  Ferguson  v.  Omaha  &  S.  W.  R.  Co.,  227 
Fed.  513;  Chase  v.  Wetzlar,  225  U.  S.  79,  83,  56  L.  Ed.  990,  991,  32  Sup.  Ct.  Rep. 
659;  United  States  v.  Congress  Const.  Co.,  222  U.  S.  199,  56  L.  Ed.  173,  32  Sup.  Ct. 
Rep.  44;  Rogers  v.  Hennepin  County,  et  al.,  220  Fed.  453;  Fore  River  Shipbuilding 
Co.  v.  Hagg,  219  U.  S.  175,  55  L.  Ed.  163, 31  Sup.  Ct.  Rep.  185;  Courtney  v.  Pradt, 
196  U.  S.  89,  49  L.  Ed.  398,  25  Sup.  Ct.  Rep.  208;  Louisville  Trust  Co.  v.  Knott, 
191  U.  S.  225,  48  L.  Ed.  159,  24  Sup.  Ct.  Rep.  119;  Blythe  v.  Hinckley,  173  U.  S. 
501,  43  L.  Ed.  783,  19  Sup.  Ct.  Rep.  497;  Alton  Water  Co.  v.  Brown,  166  Fed. 
840,  C.  C.  A.,  certiorari  denied,  212  U.  S.  581;  Smith  v.  McKay,  161  U.  S.  355,  40 
L.  Ed.  731,  16  Sup.  Ct.  Rep.  490;  Crawford  v.  McCarthy,  148  Fed.  198,  C.  C.  A. 

(61) 


Ch.  V)      APPEALS  DIRECT  TO  U.  S.  SUPREME  COURT       §§  6-9 

§  6.  Mere  challenge  of  jurisdiction  not  sufficient. 

The  mere  challenge  of  the  jurisdiction  of  the  court  over  the 
subject-matter  and  the  person  does  not  raise  the  question  of 
jurisdiction  of  the  court  as  a  Federal  Court  which  gives  the  right 
of  direct  appeal. x 
§  7.  Jurisdictional  claim  by  reason  of  illegal  service  of  process. 

But  in  the  very  recent  case  of  Merriam  v.  Saalfield,  211  U.  S. 
22,  36  Sup.  Ct.  Rep.  477,  60  L.  Ed.  868,  it  was  held  that  a 
direct  appeal  to  the  Supreme  Court  of  U.  S.  will  lie  to  test  the 
jurisdiction  of  the  court  over  the  person  of  the  defendant  obtained 
by  an  illegal  service  of  process. 

§  8.  Affidavits  attached  to  plea  of  jurisdiction  considered  on 
appeal. 

Affidavits  attached  to  a  plea  of  jurisdiction,  whether  read  to 
the  court  or  not,  will  be    considered  by    the  United  States 
Supreme  Court. 3 
§  9.  Challenging  jurisdiction  as  court  of  equity  insufficient. 

Whether,  upon  the  showing  in  the  bill,  the  appellant  is  en- 
titled to  the  relief  sought,  is  not  a  jurisdictional  question  in  the 
sense  of  Clause  1  of  Section  238. 3 

Where  a  corporation  being  named  as  a  co-defendant  objects 
to  the  jurisdiction  of  the  U.  S.  District  Court  and  the  court 
holds  that  the  objection  is  well  taken,  the  question  whether  or 
not  the  suit  may  be  maintained  under  the  general  equity  juris- 
diction of  the  court  against  the  other  defendants  is  not  a  question 
of  Federal  jurisdiction  within  the  meaning  of  Section  238  of 

*  Louisville  Trust  Co.  v.  Knott,  191  U.  S.  225,  48  L.  Ed.  169,  24  Sup.  Ct.  Rep. 
119;  Smith  v.  McKay,  161  U.  S.  335, 40  L.  Ed.  731,  16  Sup.  Ct.  Rep.  490;  Crawford 
v.  McCarthy,  148  Fed.  198. 

a  Mechanical  Appliance  Co.  v.  Castleman,  215  U.  S.  437,  446,  30  Sup.  Ct.  Rep. 
125,  54  L.  Ed.  272. 

3  Louisville  &  N.  R.  Co.  v.  Western  Union  Teleg.  Co.,  234  U.  S.  369,  34  Sup.  Ct. 
Rep.  810,  58  L.  Ed.  1356;  Darnell  v.  Illinois  Central  R.  R.  Co.,  225  U.  S.  243, 56  L. 
Ed.  1072,  32  Sup.  Ct.  Rep.  760;  Citizens'  Sav.  &  Trust  Co.  v.  Illinois  Central  R.  R. 
Co.,  et  al.,  205  U.  S.  46,  58,  51  L.  Ed.  703,  707,  27  Sup.  Ct.  Rep.  425;  Smith  v. 
McKay,  161  U.  S.  335,  40  L.  Ed.  731,  16  Sup.  Ct.  Rep.  490. 

(62) 


Ch.  V)  APPEALS  DIRECT  TO   U.   S.   SUPREME  COURT  §§  10-14 

the  Judicial  Code,  and  does  not  challenge  the  jurisdiction  of  the 

court  as  a  Federal  court.1 

§  10.    Questions  of  venue  reviewable. 

Questions  relating  to  the  venue,  where  the  right  to  object  has 
not  been  waived  by  a  general  appearance,  may  be  reviewed  under 
this  clause. 2 

§  ii.    Dismissal  of  bankruptcy  proceedings  for  lack  of  jurisdic- 
tion reviewable. 

Where  a  District  Court  dismisses  a  bankruptcy  proceeding 
for  want  of  jurisdiction,  same  may  be  reviewed  by  a  direct  writ 
of  error  to  the  Supreme  Court  of  U.  S.3 
§  12.  Jurisdictional  issue  as  understood  by  the  parties. 

Where  the  issue  of  jurisdiction  is  plainly  marked  and  is  so  un- 
derstood and  treated  by  the  parties  and  the  District  Court,  a  direct 
appeal  lies  from  the  judgment  of  dismissal  to  the  Supreme  Court.4 
§  13.  In  capital  cases,  character  of  crime  is  test  of  jurisdiction. 

The  test  of  jurisdiction  of  the  Supreme  Court  in  capital  cases 
is  the  character  of  the  crime  charged  and  not  the  punishment 
actually  imposed  by  the  District  Court.  If  a  death  penalty 
might  have  been  inflicted,  then  the  jurisdiction  of  the  U.  S. 
Supreme  Court  is  complete.5 
§  14.  Orders  in  arrest  cases  not  reviewable. 

An  appeal  from  an  order  of  arrest  alleged  to  have  been  made 
for  want  of  jurisdiction  cannot  be  taken  under  this  section.6 

1  Geneva  Furniture  Co.  v.  Karpen  &  Bros.,  238  U.  S.  254,  260,  59  L.  Ed.  1295, 
35  Sup.  Ct.  Rep.  788;  Bogart  v.  Southern  Pacific  Co.,  228  U.  S.  137,  33  Sup.  Ct. 
Rep.  497,  57  L.  Ed.  768. 

3  Male  v.  Atchison  Ry.  Co.,  240  U.  S.  97,  36  Sup.  Ct.  Rep.  351,  60  L.  Ed.  544; 
Davidson  Bros.  Marble  Co.  v.  Gibson,  213  U.  S.  10,  29  Sup.  Ct.  Rep.  324,  53  L. 
Ed.  675. 

3  Park  v.  Cameron,  237  U.  S.  616,  59  L.  Ed.  1147,  35  Sup.  Ct.  Rep.  719;  Shoe  Co. 
v.  Laird  Co.,  212  U.  S.  445,  29  Sup.  Ct.  Rep.  332,  53  L.  Ed.  591. 

4  Bryant  Co.  v.  New  York  Steamfitting  Co.,  235  U.  S.  327,  59  L.  Ed.  253,  35  Sup. 
Ct.  Rep.  108. 

s  Fitzpatrick  v.  United  States,  178  U.  S.  304,  44  L.  Ed.  1078,  20  Sup.  Ct.  Rep.  744. 
6  Carey  v.  Railway  Co.,  150  U.  S.  170,  37  L.  Ed.  1041,  14  Sup.  Ct.  Rep.  63; 
Ex  parte  Lennon,  150  U.  S.  393,  37  L.  Ed.  1120,  14  Sup.  Ct.  Rep.  123. 

(63) 


Ch.  V)  APPEALS   DIRECT  TO   U.   S.    SUPREME   COURT  §§  15-1S 

§  15.  When  dismissal  order  in  interstate  commerce  case  review- 
able. 

When  a  District  Court  dismisses  a  suit  of  a  shipper  against 
a  railroad  company  for  damages  on  the  ground  that  no  action 
on  the  claim  was  obtained  from  the  Interstate  Commerce  Com- 
mission, a  question  of  jurisdiction  of  the  District  Court  within 
the  meaning  of  Clause  1  is  presented. x 
§  16.  When  no  question  of  jurisdiction  certified,  not  reviewable. 

A  direct  appeal  from  the  District  Court  to  the  Supreme  Court 
of  U.  S.  does  not  lie  where  no  question  of  jurisdiction  was  certi- 
fied to  and  where  the  jurisdiction  of  the  court  as  a  Federal  Court 
was  not  at  issue. 2 
§  17.  When  Supreme  Court  will  review  the  whole  case. 

It  is  only  when  the  issue  in  the  trial  court  was  limited  to  the 
question  of  jurisdiction  and  that  question  was  certified  to  U.  S. 
Supreme  Court,  that  the  review  will  be  confined  to  the  single 
question  of  jurisdiction,  but  where  there  was  no  attempt  to 
make  a  separate  issue  on  the  question  of  jurisdiction  or  to  take 
an  appeal  upon  that  question  alone,  the  Supreme  Court  will 
review  the  entire  case,  if  the  record  presents  a  substantial  consti- 
tutional question. 3 
§  18.    Necessity  of  certifying  jurisdictional  question. 

The  general  rule  is  that  in  order  to  confer  jurisdiction  upon 
the  Supreme  Court  of  the  U.  S.  under  the  first  clause  of  Sect. 
23S,  the  trial  court  must  certify  the  question  of  jurisdiction  and 
thereupon  the  review  will  be  limited  to  the  question  of 
jurisdiction  only.4 

1  Mitchell  Coal  &  Coke  Co.  v.  Pennsylvania  R.  R.  Co.,  230  U.  S.  247,  57  L. 
Ed.  1472,  33  Sup.  Ct.  Rep.  916. 

a  First  National  Bank  v.  Klug,  186  U.  S.  203,  46  L.  Ed.  1127,  22  Sup.  Ct.  Rep. 
899;  Lucius  v.  Coleman  Co.,  196  U.  S.  149,  49  L.  Ed.  425,  25  Sup.  Ct.  Rep.  214. 

5  Northwestern  Laundry  v.  Des  Moines,  239  TJ.  S.  486,  60  L.  Ed.  396,  36  Sup.  Ct. 
Rep.  206;  Chappelle  v.  United  States,  160  U.  S.  499,  40  L.  Ed.  510,  16  Sup.  Ct. 
Rep.  397. 

«  Gilbert  v.  David,  235  U.  S.  561, 59  L.  Ed.  360, 35  Sup.  Ct.  Rep.  164;  Bryant  v. 
New  York  Steamfitting  Co.,  235  U.  S.  327,  59  L.  Ed.  253,  35  Sup.  Ct.  Rep.  108; 

(04) 


Ch.  V)  APPEALS  DIRECT  TO  U.   S.   SUPREME  COURT  §§  19-20 

§  19.  Mode  of  certification. 

In  order  to  maintain  the  appellate  jurisdiction  of  this  court 
under  this  clause,  the  record  must  distinctly  and  unequivocally 
show  that  the  court  below  sends  up  for  consideration  a  single  and 
definite  question  of  jurisdiction.  This  may  appear  in  either  of  two 
ways:  by  the  terms  of  the  decree  appealed  from  and  of  the  order 
allowing  the  appeal,  or  by  a  separate  certificate  of  the  court  below. z 

It  is  sufficient  if  there  is  a  plain  declaration  that  the  single 
matter  which  is  by  the  record  sent  up  for  decision  is  a  question'of 
jurisdiction,  and  the  precise  question  clearly,  fully,  and  separately 
stated.  The  record  must  affirmatively  show  that  the  trial  court 
sends  up  for  consideration  a  single  definite  question  of  jurisdiction.2 
§  20.  What  is  a  sufficient  certification. 

Where  the  record  shows  that  the  only  matter  tried  and  de- 
cided was  a  demurrer  to  the  plea  of  jurisdiction  and  the  petition 
for  the  writ  of  error  asked  only  for  a  review  on  the  sole  ground 
that  the  court  had  no  jurisdiction,  held  sufficiently  certified.3 

A  recital  in  the  bill  of  exceptions  held  sufficient. 4 

A  recital  in  the  order  allowing  the  appeal  that  it  is  granted 
"solely  upon  the  question  of  jurisdiction"  sufficient. 5 

Louisville  &  N.  R.  Co.  v.  Western  Union  Teleg.  Co.,  234  U.  S.  369,  34  Sup.  Ct.  Rep. 
810,  58  L.  Ed.  1356;  Apapas  v.  United  States,  233  U.  S.  587, 34  Sup.  Ct.  Rep.  699, 
58  L.  Ed.  1104;  Courtney  v.  Pradt,  196  U.  S.  89,  25  Sup.  Ct.  Rep.  208,  49  L.  Ed. 
398;  Chappelle  v.  United  States,  160  U.  S.  499,  40  L.  Ed.  510,  16  Sup.  Ct.  Rep.  397; 
Ansbro  v.  United  States,  159  U.  S.  695,  40  L.  Ed.  310,  16  Sup.  Ct.  Rep.  187;  Colvin 
v.  City  of  Jacksonville,  157  U.  S.  368,  39  L.  Ed.  736,  15  Sup.  Ct.  Rep.  634;  Davis 
&  Rankin  Building  &  Mfg.  Co.  v.  Barber,  157  U.  S.  673,  39  L.  Ed.  853,  15  Sup.  Ct. 
Rep.  719,  60  Fed.  465;  Maynard  v.  Hecht,  151  U.  S.  324,  38  L.  Ed.  179,  14  Sup.  Ct. 
Rep.  353. 

*  Arkansas  v.  Schlirenholz,  179  U.  S.  598,  45  L.  Ed.  335,  21  Sup.  Ct.  Rep.  229. 

3  Shields  v.  Coleman,  157  U.  S.  168,  176,  39  L.  Ed.  660,  15  Sup.  Ct.  Rep.  570. 

3  Shields  v.  Coleman,  157  U.  S.  168,  39  L.  Ed.  660,  15  Sup.  Ct.  Rep.  570;  Re 
Lehigh  Mining  &  Mfg.  Co.,  156  U.  S.  322,  39  L.  Ed.  438,  15  Sup.  Ct.  Rep.  375. 

4  Re  Lehigh  Mining  &  Mfg.  Co.,  156  U.  S.  322, 39  L.  Ed.  438, 15  Sup.  Ct.  Rep.  375. 
s  Shields  v.  Coleman,  157  U.  S.  168,  39  L.  Ed.  660,  15  Sup.  Ct.  Rep.  570. 

McAllister  v.  Cheasepeake  &  O.  R.  R.  Co.,  decided  by  U.  S.  Supreme  Court  on 
March  6,  1917,  Advance  Sheets  No.  10,  p.  274;  Excelsior  Wooden  Pipe  Co.  v. 
Pacific  Bridge  Co.,  185  U.  S.  272,  46  L.  ed.  910,  22  Sup.  Cl.  Rep.  681. 

s  (65) 


Cfl.  V)  APPEALS   DIRECT   TO   U.    S.    SUPREME   COURT  §5  21-24 

§  21.  When  certificate  is  not  required. 

A  certificate  of  the  trial  judge  is  not  required  when  the  record 
distinctly  and  unequivocally  shows  that  the  case  in  the  court 
below  turned  upon  the  single  question  of  jurisdiction.1 
§  22.  When  decree  is  equivalent  to  certificate. 

Where  the  decree  shows  on  its  face  that  the  suit  was  dis- 
missed for  want  of  jurisdiction,  it  takes  the  place  of  a  certificate 
within  the  requirements  of  the  act. 2 
§  23.  Time  to  issue  certificate. 

The  jurisdictional  certificate  must  be  issued  during  the  term 
in  which  the  case  was  decided.3 

But  where  the  certificate  is  supplied  by  a  decree  in  due  form, 
showing  dismissal  for  want  of  jurisdiction  only,  the  appeal  may 
be  perfected  subsequently  within  two  years,  as  are  other  appeals. 4 

§  24.  Clause  II.     Prize  causes  reviewable. 

In  appeals  from  the  final  sentences  and  decrees  in  prize  causes 
the  Supreme  Court  is  the  proper  tribunal  to  which  the  appeal 
should  be  taken.  On  such  appeals,  the  Supreme  Court  has 
authority  to  review  without  a  certificate  of  the  district  court 
and  regardless  of  the  amount  involved. s 

*The  Pair  v.  Kohler,  228  U.  S.  22,  33  Sup.  Ct.  Rep.  410,  57  L.  Ed.  716;  Scott 
v.  Donald,  165  U.  S.  58,  71,  41  L.  Ed.  632,  17  Sup.  Ct.  Rep.  265;  Interior  Const.  & 
Imp.  Co.  v.  Gibney,  160  U.  S.  217,  40  L.  Ed.  401,  16  Sup.  Ct.  Rep.  272;  Re  Lehigh 
Mining  &  Mfg.  Co.,  156  U.  S.  322,  39  L.  Ed.  438,  15  Sup.  Ct.  Rep.  570;  Carey  v. 
Houston  &  Texas  Cent.  Ry.,  150  U.  S.  170,  181, 37  L.  Ed.  1041,  14  Sup.  Ct.  Rep.  03. 

2  Herndon-Carter  Co.  v.  Norris,  224  U.  S.  496,  32  Sup.  Ct.  Rep.  550,  56  L.  Ed. 
857;  Excelsior  Wooden  Pipe  Co.  v.  Pacific  Bridge  Co.,  185  U.  S.  2S2,  46  L.  Ed.  910, 
30  Sup.  Ct.  Rep.  125. 

3  Colvin  v.  City  of  Jacksonville,  158  U.  S.  456,  39  L.  Ed.  1053,  15  Sup.  Ct.  Rep. 
866;  The  Bayonne,  159  U.  S.  687,  40  L.  Ed.  306,  16  Sup.  Ct.  Rep.  185. 

«  Herndon-Carter  Co.  v.  Norris,  224  U.  S.  496,  32  Sup.  Ct.  Rep.  550,  56  L.  Ed. 
857;  Excelsior  Wooden  Pipe  Co.  v.  Pacific  Bridge  Co.,  185  U.  S.  282,  46  L.  Ed.  910, 
30  Sup.  Ct.  Rep.  125.  McAllister  v.  Cheaspeake  &  O.  R.  R.  Co.,  decided  March 
6,  1917. 

s  Eastern  Extension,  Australasia  &  China  Telegraph  Co.,  Ltd.,  v.  United  States, 
231  U.  S.  320,  34  Sup.  Ct.  Rep.  57,  58  L.  Ed.  250;  The  Paquete  Habana,  175  U.  S. 
677,  680, 20  Sup.  Ct.  Rep.  290,  44  L.  Ed.  320.;  The  Adula,  176  U.  S.  361, 20  Sup.  Ct. 
432,  44  L.Ed.  505. 

(66) 


Ch.  V)  APPEALS   DIRECT   TO   U.    S.    SUPREME   COURT  §§  25-28 

§  25.  Amendments  permitted. 

"  The  Supreme  Court  may,  if  in  its  judgment  the  purposes  of  justice  require 
it,  allow  any  amendment,  either  in  form  or  substance,  of  any  appeal  in  prize 
causes."     (Rev.  Stat.  Sect.  1006.) 

§  26.  Judgment  or  decree  on  review. 

"  The  Supreme  Court  may  affirm,  modify,  or  reverse  any  judgment,  decree,  or 
order  of  a  circuit  court,  or  district  court  acting  as  a  circuit  court,  or  of  a 
district  court  in  prize  causes,  lawfully  brought  before  it  for  review,  or  may  di- 
rect such  judgment,  decree,  or  order  to  be  rendered,  or  such  further  proceed- 
ings to  be  had  by  the  inferior  court,  as  the  justice  of  the  case  may  require. 
The  Supreme  Court  shall  not  issue  execution  in  a  cause  removed  before  it 
from  such  courts,  but  shall  send  a  special  mandate  to  the  inferior  court  to 
award  execution  thereupon."     (Rev.  Stat,  of  U.  S.  §  701.) 

§  27.  Clause  III.     When  constitutional  questions  are  reviewed 
exclusively  by  the  Supreme  Court. 

When  no  diversity  of  citizenship  exists  and  the  sole  ground 
of  the  jurisdiction  of  the  U.  S.  District  Court  is  a  claim  or  privi- 
lege under  the  Constitution  of  the  U.  S.,  an  appeal  or  writ  of 
error  must  be  taken  directly  to  the  U.  S.  Supreme  Court  and  not 
to  the  U.  S.  Circuit  Court  of  Appeals,  the  jurisdiction  of  the 
Supreme  Court  being  exclusive.1 

§  28.  Substantial  constitutional  question  a  jurisdictional  pre- 
requisite. 

But  in  order  that  jurisdiction  of  the  Supreme  Court  of  U.  S. 
can  be  maintained  it  must  appear  on  the  record  that  the  suit 
really  and  substantially  involves  a  dispute  or  controversy  as  to 
a  right  which  depends  on  the  construction  of  the  Constitution 
or  some  law  or  treaty  of  the  United  States.2 

1  Carolina  Glass  Co.  v.  Carolina,  240  U.  S.  305,  36  Sup.  Ct.  Rep.  293,  60  L.  Ed. 
658;  American  Sug.  Ref.  Co.  v.  City  of  New  Orleans,  181  U.  S.  277,  45  L.  Ed.  853, 
21  Sup.  Ct.  Rep.  646;  Collins  v.  Board  of  Control,  219  Fed.  885,  C.  C.  A.  5th  Cir- 
cuit; Union  and  Planters'  Bank  v.  Memphis,  189  U.  S.  71,  73,  23  Sup.  Ct.  Rep.  604, 
47  L.  Ed.  712;  Huguley  Mfg.  Co.  v.  Galeton  Cotton  Mills,  184  U.  S.  290,  22  Sup. 
Ct.  Rep.  452,  46  L.  Ed.  546;  Chappelle  v.  United  States,  160,  U.  S.  499,  509,  40  L. 
Ed.  510,  16  Sup.  Ct.  Rep.  397. 

*  Western  Union  Teleg.  Co.  v.  Ann  Arbor  R.  R.  Co.,  178  U.  S.  237,  244  44,  L. 
Ed.  1052,  1054,  20  Sup.  Ct.  Rep.  867;  Little  York  Gold  Washing  &  Water  Co.  v. 

(67) 


Ch.  V)  APPEALS  DIRECT  TO  U.   S.   SUPREME  COURT  §§  29-30 

§  29.  When  optional  to  appeal  to  the  U.  S.  Supreme  Court  or 
U.  S.  Court  of  Appeals. 

But  when  the  jurisdiction  of  the  District  Court  rests  on 
diversity  of  citizenship  and  the  case  as  made  by  the  issues  involves 
constitutional  and  other  questions,  the  appeal  or  writ  of  error 
may  be  taken  either  to  the  U.  S.  Supreme  Court  or  the  U.  S. 
Circuit  Court  of  Appeals. z 

The  law  is  well  settled  that  where  the  jurisdiction  of  the 
District  Court  depends  solely  on  diverse  citizenship,  and  it  turns 
out  later  that  the  case  also  involves  the  construction  or  applica- 
tion of  the  Constitution  of  the  United  States,  or  the  constitu- 
tionality of  a  law  of  the  United  States,  or  the  validity  or 
construction  of  a  treaty  is  drawn  in  question,  or  the  constitu- 
tion or  law  of  a  state  is  claimed  to  be  in  contravention  of 
the  Constitution  of  the  United  States,  the  Circuit  Court  of 
Appeals  may  certify  the  constitutional  or  treaty  question  to  the 
Supreme  Court  and  proceed  as  thereupon  advised,  or  may  decide 
the  whole  case;  but  the  mere  fact  that  in  such  a  case  one  or 
more  of  the  constitutional  questions  referred  to  in  Clause  3  may 
have  so  arisen  that  a  direct  resort  to  the  Supreme  Court  of  the 
United  States  might  be  had  does  not  deprive  the  Court  of  Ap- 
peals of  jurisdiction,  or  justify  it  in  declining  to  exercise  it.2 
§  30.  Cross-appeals. 

Under  Clause  3,  cross-appeals  may  be  taken  directly  to  the 
Supreme  Court  of  the  U.  S.  upon  every  question  in  the  case.3 


Keyes,  96  U.  S.  199,  24  L.  Ed.  656;  Blackburn  v.  Portland  Gold  Mining  Co.,  175 
U.  S.  571,  44  L.  Ed.  276,  20  Sup.  Ct.  Rep.  222. 

1  Huguley  Mfg.  Co.  v.  Galeton  Cotton  Mills,  184  U.  S.  290,  296,  46  L.  Ed.  546, 
22  Sup.  Ct.  Rep.  452;  American  Sugar  Ref.  Co.  v.  New  Orleans,  181  U.  S.  277,  283, 
45  L.  Ed.  859,  21  Sup.  Ct.  Rep.  646;  Loeb  v.  Columbia  Twp.  Co.,  179  U.  S.  472,  45 
L.  Ed.  280,  21  Sup.  Ct.  Rep.  174. 

3  Bagley  v.  General  Fire  Ext.  Co.,  212  U.  S.  447,  29  Sup.  Ct.  Rep.  341,  53  L.  Ed. 
605;  McFadden  v.  U.  S.  288,  29  Sup.  Ct.  Rep.  490,  53  L.  Ed.  801;  American  Sugar 
Ref.  Co.  v.  New  Orleans,  181  U.  S.  277,  283,  45  L.  Ed.  859,  21  Sup.  Ct.  Rep.  646. 

i  Field  v.  Barber  Asphalt  Paving  Co.,  194  U.  S.  618,  621,  48  L.  Ed.  1142,  24  Sup. 
Ct.  Rep.  784. 

(68) 


Ch.  V)  APPEALS  DIRECT  TO  U.   S.   SUPREME  COURT  §§  51-34 

§  31.  Specific  constitutional  question  must  appear  from  plaintiff's 
statement  of  claim. 

In  order  to  sustain  the  jurisdiction  of  the  Supreme  Court 
under  Clause  3,  it  is  indispensable  that  plaintiff's  statement  of 
his  cause  of  action,  whether  by  a  bill  of  complaint  in  equity  or 
declaration  in  an  action  at  law,  should  be  based  specifically 
upon  the  Constitution  or  laws  of  the  United  States.  It  is  not 
enough  that  the  plaintiff  alleges  some  anticipated  defense  to  his 
cause  of  action  and  that  defense  is  invalidated  by  some  provision 
of  the  Constitution  of  the  United  States.1 

A  request  for  ruling  on  a  constitutional  point  is  necessary  to 
authorize  a  review. 2 
§  32.  Facts  and  law  must  be  well  pleaded. 

A  suit  does  not  arise  under  the  Constitution  of  the  U.  S. 
unless  the  facts  and  the  law  are  well  pleaded  in  legal  and  logical 
form.     A  mere  statement  that  a  certain  act  violates  the  Federal 
Constitution  is  insufficient. 3 
§  33.  Defendant  may  raise  constitutional  question  by  answer. 

A  Federal  question  may  be  raised  by  the  defendant  in  his 
answer.4 
§  34.  Entire  case  and  every  question  will  be  reviewed. 

Where  a  case  is  brought  to  the  Supreme  Court  of  U.  S.  be- 
cause a  constitutional  question  is  involved,  the  entire  case  and 

1  Louisville  &  N.  R.  R.  Co.  v.  Moteley,  211  U.  S.  149,  154,  29  Sup.  Ct.  Rep. 
42,  53  L.  Ed.  126;  Huguley  Mfg.  Co.  v.  Galeton  Cotton  Mills,  184  U.  S.  290,  46 
L.  Ed.  546,  22  Sup.  Ct.  Rep.  452;  Tennessee  v.  Union  Planters'  Bank,  152  U.  S.  454, 
38  L.  Ed.  511,  14  Sup.  Ct.  Rep.  654;  Spreckels  Sug.  Ref.  Co.  v.  McClain,  192  U.  S. 
397,  24  Sup.  Ct.  Rep.  376,  48  L.  Ed.  496 ;  Boston  &  M.  Consolidated  Min.  Copper 
&  Mining  Co.  v.  Montana  Ore.  Purch.  Co.,  188  U.  S.  632,  23  Sup.  Ct.  Rep.  434,  47 
L.  Ed.  626. 

3  Cornel  v.  Green,  163  U.  S.  75,  16  Sup.  Ct.  Rep.  969,  41  L.  Ed.  76;  Richard 
v.  Michigan,  186  U.  S.  479,  22  Sup.  Ct.  Rep.  942,  46  L.  Ed.  1259. 

3  Arbuckel  v.  Blackburn,  191  U.  S.  405, 408,  48  L.  Ed.  239,  241, 24  Sup.  Ct.  Rep. 
148;  Defiance  Water  Co.  v.  Defiance,  191  U.  S.  184,  48  L.  Ed.  140,  24  Sup.  Ct. 
Rep.  63. 

4  Loeb  v.  Columbia  Twp.  Co.,  179  U.  S.  472,  45  L.  Ed.  280,  21  Sup.  Ct. 
Rep.  174. 

(09) 


Ch.    V)  APPEALS  DIRECT  TO  U.    S.    SUPREME  COURT  §§  35~36 

every  question  therein  properly  preserved  and  duly  assigned  as 

error  will  be  considered. z 

§  35.     Constitutional  question  arising  during  trial. 

Where  the  District  Court  properly  obtains  jurisdiction  be- 
cause of  the  diversity  of  citizenship,  and  during  the  course  of 
the  trial  a  constitutional  question  within  the  meaning  of  this 
section  comes  up,  the  appeal  can  be  taken  directly  to  the  Supreme 
Court,  which  court  may  render  judgment  on  every  proposition 
involved  in  the  case. 2 

§  36.    When  constitutional  question  has  been  decided  pending 
appeal.    Jurisdiction  retained  on  other  branches  of  case. 

Where  a  case  is  taken  to  the  Supreme  Court  by  reason  of  a 
constitutional  question  involved  in  the  case,  the  fact  that  the 
question  is  decided  adversely  in  another  case  pending  the  termina- 
tion of  the  appeal  will  not  oust  the  Supreme  Court  of  jurisdiction. 
And  the  rule  has  been  laid  down  broadly  that  even  though  the 
constitutional  question  since  the  suing  out  of  the  writ  of  error 


1  Louisville  &  N.  R.  Co.  v.  Western  Union  Teleg.  Co.,  234  U.  S.  369,  34  Sup. 
Ct.  Rep.  810,  58  L.  Ed.  1356;  Singer  Sewing  Machine  Co.  v.  Brickell,  233  U.  S. 
334,  34  Sup.  Ct.  Rep.  493,  58  L.  Ed.  974;  Boise"  Artesian  H.  &  C.  Water  Co.  v. 
Bois6  City,  230  U.  S.  84,  91,  33  Sup.  Ct.  Rep.  997,  57  L.  Ed.  1400;  Michigan  Central 
R.  Co.  v.  Vreeland,  227  U.  S.  59,  33  Sup.  Ct.  Rep.  192,  57  L.  Ed.  417;  Siler  v.  Louis- 
ville  &  X.  R.  Co.,  213  U.  S.  175,  29  Sup.  Ct.  Rep.  451,  53  L.  Ed.  753;  North  American 
Cold  Storage  Co.  v.  Chicago,  211  U.  S.  306,  53  L.  Ed.  195,  29  Sup.  Ct.  Rep.  101; 
Fayerwcather  v.  Ritch,  195  U.  S.  276,  49  L.  Ed.  193,  25  Sup.  Ct.  Rep.  58;  Fields  v. 
Barber  Asphalt  Paving  Co.,  194  U.  S.  618,  621,  48  L.  Ed.  1142,  24  Sup.  Ct.  Rep.  784; 
National  Foundry  &  Pipe  Works  v.  Oconto  City  Water  Supply  Co.,  183  U.  S.  216, 
46  L.  Ed.  157,  22  Sup.  Ct.  Rep.  Ill ;  Loeb  v.  Columbia  Twp  Co.,  179  U.  S.  472,  473, 
45  L.  Ed.  2C0,  21  Sup.  Ct.  Rep.  174;  American  Sugar  Ref.  Co.  v.  Louisiana,  179 
U.  S.  83,  45  L.  Ed.  102,  21  Sup.  Ct.  Rep.  43;  Holder  v.  Aultman  Miller  &  Co., 
1C9  U.  S.  81,  42  L.  Ed.  669,  18  Sup.  Ct.  Rep.  269;  Penn.  Mut.  Life  Ins.  Co.  v. 
Austin,  168  U.  S.  685,  42  L.  Ed.  626,  18  Sup.  Ct.  Rep.  233;  Scott  v.  Donald,  165 
U.  S.  58, 41  L.  Ed.  632,  17  Sup.  Ct.  Rep.  265,  and  cases  cited;  Horner  v.  United  States, 
143  U.  S.  570,  36  L.  Ed.  266,  12  Sup.  Ct.  Rep.  522. 

'  Siler  v.  Louisville  &  N.  R.  Co.,  213  U.  S.  175,  176,  53  L.  Ed.  753,  29  Sup.  Ct. 
Rep.  451;  Ayres  v.  Polsdorfer,  187  U.  S.  585,  47  L.  Ed.  314,  23  Sup.  Ct.  Rep.  196; 
Ilu^uley  Mfg.  Co.  v.  Galeton  Cotton  Mills,  184  U.  S.  290,  46  L.  Ed.  546,  22  Sup. 
Ct.  Rep.  452. 

(70) 


Ch.  V)  APPEALS   DIRECT   TO   U.    S.    SUPREME   COURT  §§  37-38 

has  become  a  mere  abstraction,  the  duty  rests  upon  the  Supreme 
Court  to  review  the  case  upon  other  assignments  of  error.  * 
§  37.  Frivolous  constitutional  questions. 

If  the  jurisdiction  of  the  District  Court  was  invoked  on  the 
ground  of  diversity  of  citizenship,  and  the  averment  as  to  a  right 
arising  under  the  Federal  Constitution  or  statutes  was  unsub- 
stantial and  without  real  merit,  either  because  of  its  frivolous 
character  upon  its  face,  or  from  the  fact  that  reliance  was  based 
upon  a  claim  of  Federal  or  statutory  right  denied  by  former 
adjudications  of  the  Supreme  Court  of  the  United  States,  then 
the  appeal  will  be  dismissed. 2 

Where  the  constitutional  point  is  without  any  merit  and  is  a 
mere  pretext  put  forward  in  order  to  open  other  questions  that 
otherwise  could  not  be  reviewed  by  the  Supreme  Court  of  the 
U.  S.,  the  writ  of  error  or  appeal  will  be  dismissed  for  want  of 
jurisdiction.3 

§  38.  Clause  IV. — Construction  of  Federal  treaties— direct  to 
Supreme  Court. 

Where  it  is  necessary  to  construe  and  apply  Federal  treaties, 
an  appeal  or  writ  of  error  lies  directly  from  the  Supreme  Court 
of  U.  S.  to  the  District  Court.4 

1  Wilson  v.  United  States,  232  U.  S.  563,  34  Sup.  Ct.  Rep.  347,  58  L.  Ed.  728; 
Williamson  v.  United  States,  207  U.  S.  425,  28  Sup.  Ct.  Rep.  163,  52  L.  Ed.  278; 
Burton  v.  United  States,  196  U.  S.  283,  49  L.  Ed.  482,  25  Sup.  Ct.  Rep.  243 ;  Hor- 
ner v.  United  States,  143  U.  S.  570,  36  L.  Ed.  266,  12  Sup.  Ct.  Rep.  522. 

'Merriam  Co.  v.  Syndicate  Pub.  Co.,  237  U.  S.  618,  59  L.  Ed.  1148,  35  Sup. 
Ct.  Rep.  708;  Toop  v.  Ulysses  Land  Co.,  237  U.  S.  5S0,  35  Sup.  Ct.  Rep.  739,  53 
L.  Ed.  1127;  Brolan  v.  United  States,  236  U.  S.  216,  35  Sup.  Ct.  Rep.  285,  59  L. 
Ed.  544;  De  Beam  v.  Safe  Deposit  &  Trust  Co.,  233  U.  S.  24, 34  Sup.  Ct.  Rep.  584, 
58  L.  Ed.  833 ;  Newburyport  Water  Co.  v.  Newburyport,  193  U.  S.  561,  576,  4S  L.  Ed. 
795,  799,  24  Sup.  Ct.  Rep.  553;  Sawyer  v.  Piper,  189  U.  S.  154,  158,  47  L.  Ed.  757, 
23  Sup.  Ct.  Rep.  633;  Equitable  Life  Assur.  Soc.  v.  Brown,  187  U.  S.  308,  311,  47  L. 
Ed.  190,  192,  23  Sup.  Ct.  Rep.  123;  Lampasas  v.  Bell,  180  U.  S.  276,  21  Sup.  Ct. 
Rep.  368,  284,  45  L.  Ed.  527. 

J  United  Surety  Co.  v.  American  Fruit  Product  Co.,  238  U.  S.  140,  35  Sup.  Ct 
Rep.  828,  59  L.  Ed.  1238. 

4  Johnson  v.  Gerald,  234  U.  S.  422,  34  Sup.  Ct.  Rep.  794,  58  L.  Ed.  1383;  Mc- 
Govern  v.  Philadelphia  &  R.  R.  Co.,  235  U.  S.  3S9,  59  L.  Ed.  283,  35  Sup.  Ct.  Rep.  127. 

(71) 


Ch.  V)  APPEALS  DIRECT  TO  U.   S.   SUPREME  COURT  §§  39-42 

§  39.  Issue  must  be  raised  in  court  below. 

In  order  to  obtain  a  review  under  this  section,  the  record  must 
show  that  a  definite  issue  was  made  in  relation  to  a  treaty  in 
the  court  below. * 
§  40.  Non-resident  alien  may  raise  question. 

Where,  in  an  action  under  the  Employers'  Liability  Act,  a 
defense  was  interposed  that  the  action  cannot  be  maintained  by 
a  non-resident  alien,  and  the  plaintiff  relied  upon  certain  treaties 
to  offset  this  defense,  a  case  within  the  meaning  of  Clause  4  was 
presented  reviewable  on  direct  appeal  to  the  Supreme  Court. 2 

§  41.  Clause  V. — When  State  constitution  or  law  is  contrary  to 
U.  S.  Constitution,  direct  appeal  lies. 

In  any  case  in  which  the  constitution  or  law  of  a  state  is 
claimed  to  be  in  contravention  to  the  Constitution  of  the  United 
States,  an  appeal  direct  to  the  Supreme  Court  of  the  United  States 
will  He.3 

§  42.    Interlocutory  Injunctions.    Jurisdiction  of  the  Supreme 
Court  on  direct  appeal  under  the  Act  of  March  4,  1913, 
restricting  the  issuance.    The  statute. 
Section  266  of  the  Federal  Judicial  Code,  as  amended,  is  as 
follows : 

"Sec.  266.  No  interlocutory  injunction  suspending  or  restraining  the  en- 
forcement, operation,  or  execution  of  any  statute  of  a  State  by  restraining  the 
action  of  any  officer  of  such  State  in  the  enforcement  or  execution  of  such 
statute,  or  in  the  enforcement  or  execution  of  an  order  made  by  an  admini- 
strative board  or  commission  acting  under  and  pursuant  to  the  statutes  of 


*  Cincinnati  H.  &  D.  R.  R.  Co.  v.  Thicbaud,  177  U.  S.  615,  44  L.  Ed.  911,  20 
Sup.  Ct.  Rep.  822. 

■  McGovera  v.  Philadelphia  R.  R.  Co.,  235  U.  S.  389,  35  Sup.  Ct.  Rep.  133, 
59  L.  Ed.  283. 

3  Wilson  v.  United  States,  232  U.  S.  563,  24  Sup.  Ct.  Rept.  347,  55  L.  ed.  828, 
Myles  Salt  Co.  v.  Drainage  District,  239  U.  S.  478,  36  Sc.  204,  60  L.  392,  and  see 
Act  of  Sept.  6,  1916,  page  134  of  this  book.  North  American  Cold  Storage  Co.  v. 
Chicago,  211  U.  S.  306,  29  Sup.  Ct.  Rep.  101,  53  L.  Ed.  195;  Press  Publishing  Co. 
v.  Monroe,  164  U.  S.  105,  41  L.  Ed.  367,  17  Sup.  Ct.  Rep.  40;  Chappelle  v.  United 
States,  100  U.  S.  499,  40  L.  Ed.  510, 16  Sup.  Ct.  Rep.  397;  Horner  v.  United  States, 
143  U.  S.  570,  46  L.  Ed.  266,  12  Sup.  Ct.  Rep.  522. 

(72) 


Ch.  V)  APPEALS  DIRECT  TO  U.   S.   SUPREME  COURT  §  43 

such  State,  shall  be  issued  or  granted  by  any  Justice  of  the  Supreme  Court 
or  by  any  District  Court  of  the  United  States,  or  by  any  judge  thereof,  or  by, 
any  circuit  judge  acting  as  district  judge,  upon  the  ground  of  unconstitution- 
ality of  such  statute,  unless  the  application  for  the  same  shall  be  presented  to 
a  justice  of  the  Supreme  Court  of  the  United  States,  or  to  a  circuit  or  district 
judge,  and  shall  be  heard  and  determined  by  three  judges,  of  whom  at  least 
one  shall  be  a  justice  of  the  Supreme  Court  or  a  circuit  judge,  and  the  other 
two  may  be  either  circuit  or  district  judges,  and  unless  a  majority  of  said  three 
judges  shall  concur  in  granting  such  application.  Whenever  such  application 
as  aforesaid  is  presented  to  a  justice  of  the  Supreme  Court,  or  to  a  judge,  he 
shall  immediately  call  to  his  assistance  to  hear  and  determine  the  application 
two  other  judges:  Provided,  however,  That  one  of  such  three  judges  shall 
be  a  justice  of  the  Supreme  Court,  or  a  circuit  judge.  Said  application  shall 
not  be  heard  or  determined  before  at  least  five  days'  notice  of  the  hearing  has 
been  given  to  the  governor  and  to  the  attorney  general  of  the  State,  and  to 
such  other  persons  as  may  be  defendants  in  the  suit:  Provided,  That  if  of 
opinion  that  irreparable  loss  or  damage  would  result  to  the  complainant  unless 
a  temporary  restraining  order  is  granted,  any  justice  of  the  Supreme  Court, 
or  any  circuit  or  district  judge,  may  grant  such  temporary  restraining  order  at 
any  time  before  such  hearing  and  determination  of  the  application  for  an  inter- 
locutory injunction,  but  such  temporary  restraining  order  shall  remain  in  force 
only  until  the  hearing  and  determination  of  the  application  for  an  interlocutory 
injunction  upon  notice  as  aforesaid.  The  hearing  upon  such  application  for 
an  interlocutory  injunction  shall  be  given  precedence  and  shall  be  in  every 
way  expedited  and  be  assigned  for  a  hearing  at  the  earliest  practicable  day 
after  the  expiration  of  the  notice  hereinbefore  provided  for.  An  appeal  may 
be  taken  direct  to  the  Supreme  Court  of  the  United  States  from  the  order  grant- 
ing or  denying,  after  notice  and  hearing,  an  interlocutory  injunction  in  such 
case.  It  is  further  provided  that  if  before  the  final  hearing  of  such  application 
a  suit  shall  have  been  brought  in  a  court  of  the  State  having  jurisdiction  thereof 
under  the  laws  of  such  State,  to  enforce  such  statute  or  order,  accompanied 
by  a  stay  in  such  state  court  of  proceedings  under  such  statute  or  order  pending 
the  determination  of  such  suit  by  such  State  court,  all  proceedings  in  any  court 
of  the  United  States  to  restrain  the  execution  of  such  statute  or  order  shall  be 
stayed  pending  the  final  determination  of  such  suit  in  the  courts  of  the  State. 
Such  stay  may  be  vacated  upon  proof  made  after  hearing,  and  notice  of  ten 
days  served  upon  the  attorney  general  of  the  State,  that  the  suit  in  the  State 
courts  is  not  being  prosecuted  with  diligence  and  good  faith."     (37  Stat.  L.  1013.) 

§  43.    Appeals  from    interlocutory    injunctions    in   Interstate 
Commerce  cases  under  Act  of  October  22, 1913. 

Jurisdiction  of  U.  S.  Supreme  Court : 

.  .  .  The  Commerce  Court,  created  and  established  by  the  Act  entitled 
•"An  Act  to  create  a  Commerce  Court  and  to  amend  the  Act  entitled  'An  Act 

(73) 


Ch.  V)  APPEALS  DIRECT  TO  U.   S.   SUPREME  COURT  §  43 

to  regulate  commerce, '  approved  February  fourth,  eighteen  hundred  and  eighty- 
seven  (1SS7)  as  heretofore  amended,  and  for  other  purposes,"  approved  June 
eighteenth,  nineteen  hundred  and  ten  (1910),  is  abolished  from  and  after 
December  thirty-first,  nineteen  hundred  and  thirteen,  and  the  jurisdiction 
vested  in  said  Commerce  Court  by  said  Act  is  transferred  to  and  vested  in  the 
several  district  courts  of  the  United  States,  and  all  Acts  or  parts  of  Acts  in 
so  far  as  they  relate  to  the  establishment  of  the  Commerce  Court  are  repealed. 
Nothing  herein  contained  shall  be  deemed  to  affect  the  tenure  of  any  of  the 
judges  now  acting  as  circuit  judges  by  appointment  under  the  terms  of  said 
Act,  but  such  judges  shall  continue  to  act  under  assignment,  as  in  the  said  Act 
provided,  as  judges  of  the  district  courts  and  circuit  courts  of  appeals;  and  in 
the  event  of  and  on  the  death,  resignation,  or  removal  from  office  of  any  of 
such  judges,  his  office  is  hereby  abolished  and  no  successor  to  him  shall  be 
appointed. 

The  venue  of  any  suit  hereafter  brought  to  enforce,  suspend,  or  set  aside,  in 
whole  or  in  part,  any  order  of  the  Interstate  Commerce  Commission  shall  be 
in  the  judicial  district  wherein  is  the  residence  of  the  party  or  any  of  the  parties 
upon  whose  petition  the  order  was  made,  except  that  where  the  order  docs  not 
relate  to  transportation  or  is  not  made  upon  the  petition  of  any  party  the 
venue  shall  be  in  the  district  where  the  matter  complained  of  in  the  petition 
before  the  commission  arises,  and  except  that  where  the  order  does  not  relate 
either  to  transportation  or  to  a  matter  so  complained  of  before  the  commission 
the  matter  covered  by  the  order  shall  be  deemed  to  arise  in  the  district  where 
one  of  the  petitioners  in  court  has  either  its  principal  office  or  its  principal 
operating  office.  In  case  such  transportation  relates  to  a  through  shipment 
the  term  "destination"  shall  be  construed  as  meaning  final  destination  of  such 
shipment. 

The  procedure  in  the  district  courts  in  respect  to  cases  of  which  jurisdiction 
is  conferred  upon  them  by  this  Act  shall  be  the  same  as  that  heretofore  prevail- 
ing in  the  Commerce  Court.  The  orders,  writs,  and  processes  of  the  district 
courts  may  in  these  cases  run,  be  served,  and  be  returnable  anywhere  in  the 
United  States;  and  the  right  of  appeal  from  the  district  courts  in  such  cases 
shall  be  the  same  as  the  right  of  appeal  heretofore  prevailing  under  existing 
law  from  the  Commerce  Court.  No  interlocutory  injunction  suspending  or 
restraining  the  enforcement,  operation,  or  execution  of,  or  setting  aside,  in 
whole  or  in  part,  any  order  made  or  entered  by  the  Interstate  Commerce  Com- 
mission shall  be  issued  or  granted  by  any  district  court  of  the  United  States, 
or  by  any  judge  thereof,  or  by  any  circuit  judge  acting  as  district  judge,  unless 
the  application  for  the  same  shall  be  presented  to  a  circuit  or  district  judge, 
and  shall  be  heard  and  determined  by  three  judges,  of  whom  at  least  one  shall 
be  a  circuit  judge,  and  unless  a  majority  of  said  three  judges  shall  concur  in 
granting  such  application.  When  such  application  as  aforesaid  is  presented 
to  a  judge,  he  shall  immediately  call  to  his  assistance  to  hear  and  determine 
the  application  two  other  judges.  Said  application  shall  not  be  heard  or  deter- 
mined before  at  least  five  days'  notice  of  the  hearing  has  been  given  to  the  In- 

(74) 


Ch.  V)  APPEALS  DIRECT  TO   U.    S.   SUPREME  COURT  §  43 

terstate  Commerce  Commission,  to  the  Attorney-General  of  the  United  States 
and  to  such  other  persons  as  may  be  defendants  in  the  suit:  Provided,  That 
in  cases  where  irreparable  damage  would  otherwise  ensue  to  the  petitioner,  a 
majority  of  said  three  judges  concurring,  may,  on  hearing,  after  not  less  than 
three  days'  notice  to  the  Interstate  Commerce  Commission  and  the  Attorney- 
General,  allow  a  temporary  stay  or  suspension,  whole  or  in  part,  of  the  opera- 
tion of  the  order  of  the  Interstate  Commerce  Commission  for  not  more  than 
sixty  days  from  the  date  of  the  order  of  said  judges  pending  the  application  for 
the  order  or  injunction,  in  which  case  the  said  order  shall  contain  a  specific 
finding,  based  upon  evidence  submitted  to  the  judges  making  the  order  and 
identified  by  reference  thereto,  that  such  irreparable  damage  would  result  to 
the  petitioner  and  specifying  the  nature  of  the  damage.  The  said  judges  may, 
at  the  time  of  hearing  such  application,  upon  a  like  finding,  continue  the  tem- 
porary stay  or  suspension  in  whole  or  in  part  until  decision  upon  the  applica- 
tion. The  hearing  upon  such  application  for  an  interlocutory  injunction  shall 
be  given  precedence  and  shall  be  in  every  way  expedited  and  be  assigned  for  a 
hearing  at  the  earliest  practicable  day  after  the  expiration  of  the  notice  herein- 
before provided  for.  An  appeal  may  betaken  direct  to  the  Supreme  Court  of 
the  United  States  from  the  order  granting  or  denying,  after  notice  and  hearing, 
an  interlocutory  injunction,  in  such  case  if  such  appeal  be  taken  within  thirty 
days  after  the  order,  in  respect  to  which  complaint  is  made,  is  granted  or  refused; 
and  upon  the  final  hearing  of  any  suit  brought  to  suspend  or  set  aside,  in  whole 
or  in  part,  any  order  of  said  commission  the  same  requirement  as  to  judges  and 
the  same  procedure  as  to  expedition  and  appeal  shall  apply.  A  final  judgment  or 
decree  of  the  district  court  may  be  reviewed  by  the  Supreme  Court  of  the  United 
States  if  appeal  to  the  Supreme  Court  be  taken  by  an  aggrieved  party  within 
sixty  days  after  the  entry  of  such  final  judgment  or  decree,  and  such  appeals 
may  be  taken  in  like  manner  as  appeals  are  taken  under  existing  law  in  equity 
cases.  And  in  such  case  the  notice  required  shall  be  served  upon  the  defendants 
in  the  case  and  upon  the  Attorney-General  of  the  State.  All  cases  pending  in  the 
Commerce  Court  at  the  date  of  the  passage  of  this  Act  shall  be  deemed  pending 
in  and  be  transferred  forthwith  to  said  district  courts  except  cases  which  may 
previously  have  been  submitted  to  that  court  for  final _decree  and  the  latter  to  be 
transferred  to  the  district  courts  if  not  decided  by  the  Commerce  Court  before 
December  first,  nineteen  hundred  and  thirteen  (1913),  and  all  cases  wherein  in- 
junctions or  other  orders  or  decrees,  mandatory  or  otherwise,  have  been  directed 
or  entered  prior  to  the  abolition  of  the  said  court  shall  be  transferred  forthwith 
to  said  district  courts,  which  shall  have  jurisdiction  to  proceed  therewith  and 
to  enforce  said  injunctions,  orders,  or  decrees.  Each  of  said  cases  and  ail  the 
records,  papers,  and  proceedings  shall  be  transferred  to  the  district  court  wherein 
it  might  have  been  filed  at  the  time  it  was  filed  in  the  Commerce  Court  if  this 
Act  had  then  been  in  effect;  and  if  it  might  have  been  filed  in  any  one  of  two 
or  more  district  courts  it  shall  be  transferred  to  that  one  of  said  district  courts 
which  may  be  designated  by  the  petitioner  or  petitioners  in  said  case,  or  upon 
failure  of  said  petitioners  to  act  in  the  premises  within  thirty  days  after  the 

(75) 


Ch.  V)  APPEALS   DIRECT   TO   U.    S.    SUPREME  COURT  §§  44~45 

passage  of  this  Act,  to  such  one  of  said  district  courts  as  may  be  designated  by 
the  judges  of  the  Commerce  Court.  The  judges  of  the  Commerce  Court  shall 
have  authority,  and  are  hereby  directed,  to  make  any  and  all  orders  and  to 
take  any  other  action  necessary  to  transfer  as  aforesaid  the  cases  and  all  the 
records,  papers,  and  proceedings  then  pending  in  the  Commerce  Court  to  said 
district  courts.  All  administrative  books,  dockets,  files,  and  all  papers  of  the 
Commerce  Court  not  transferred  as  part  of  the  record  of  any  particular  case 
shall  be  lodged  in  the  Department  of  Justice.  All  furniture,  carpets,  and  other 
property  of  the  Commerce  Court  is  turned  over  to  the  Department  of  Justice 
and  the  Attorney-General  is  authorized  to  supply  such  portion  thereof  as  in  his 
judgment  may  be  proper  and  necessary  to  the  United  States  Board  of  Media- 
tion and  Conciliation. 

Any  case  hereafter  remanded  from  the  Supreme  Court  which,  but  for  the 
passage  of  this  Act,  would  have  been  remanded  to  the  Commerce  Court,  shall 
be  remanded  to  a  district  court,  designated  by  the  Supreme  Court,  wherein  it 
might  have  been  instituted  at  the  time  it  was  instituted  in  the  Commerce  Court 
if  this  Act  had  then  been  in  effect,  and  thereafter  such  district  court  shall  take 
all  necessary  and  proper  proceedings  in  such  case  in  accordance  with  law  and 
such  mandate,  order,  or  decree  therein  as  may  be  made  by  said  Supreme  Court. 

All  laws  or  part  of  laws  inconsistent  with  the  foregoing  provisions  relating 
to  the  Commerce  Court  are  repealed.     (38  Stat.  L.  219.) 

§  44.  Jurisdiction  of  Supreme  Court  under  said  act. 

The  Supreme  Court  has  jurisdiction  over  causes  arising  under 
this  Act.1 
§  45.    Applies  to  order  by  administrative  board  or  commission. 

Section  266  of  the  Judicial  Code,  as  amended  by  Act  of  March 
4,  1913,  applies  to  orders  by  administrative  boards  or  commis- 
sions, and  an  application  for  an  interlocutory  injunction  suspend- 
ing or  restraining  the  enforcement  of  any  such  order  made  by 
such  board  or  commission  must  be  made  to  a  Federal  judge,  and 
shall  be  heard  and  determined  by  three  judges,  of  whom  at  least 
one  must  be  a  justice  of  the  U.  S.  Supreme  Court  or  a  circuit 
judge,  and  the  other  two  may  be  either  circuit  or  district  judges.3 

1  Louisville  &  Nashville  R.  Co.  v.  United  States,  238  U.  S.  1,  35  Sup.  Ct.  Rep. 
696,  59  L.  Ed.  1177. 

2  Louisville  &  Nashville  R.  R.  Co.  v.  Railroad  Commission,  208  Federal,  35; 
Nolen  v.  Reichman,  225  Fed.  812;  Trenton  &  Mercer  Co.  Traction  Corp.  v.  In- 
habitants of  City  of  Trenton,  227  Fed.  502;  Alabama  &  N.  O.  Transp.  Co.  v.  Doyle, 
210  Fed.  173. 

(76) 


Ch.  V)  APPEALS  DIRECT  TO  U.   S.   SUPREME  COURT  §§  46-51 

§  46.  Cannot  restrain  public  officer  where  act  is  constitutional. 

Where,  however,  the  injunction  sought  is  merely  for  the  pur- 
pose of  restraining  some  public  officer  from  doing  something  under 
an  act  which  is  admitted  to  be  constitutional,  this  section  does 
not  apply. r 
§  47.  Supreme  Court  on  review  may  determine  every  question. 

Because  of  the  Federal  questions  raised,  the  District  Court 
in  the  first  instance  and  the  Supreme  Court  of  U.  S.  on  review  may 
determine  every  question  in  the  case,  local  as  well  as  Federal. 2 
§  48.  Can  review  action  of  State  Public  Utilities  Commission. 

A  State  Public  Utilities  Commission  is  not  a  court  and  its 
action  may  be  reviewed  under  the  above  statute  in  the  Federal 
Court.3 
§  49.  When  injunction  was  refused. 

Where  no  opportunity  has  been  given  to  test  the  result  of  the 
operation  ordinance,  and  the  company  earned  six  per  cent  on  its 
capital,  an  injunction  was  refused.4 

§  50.  Criminal  Appeals  Act.     Jurisdiction  of  the  Supreme 
Court  on  appeals  by  government. 

The  jurisdiction  of  the  Supreme  Court  of  the  United  States 
to  review  criminal  cases  on  appeal  by  the  government  is  conferred 
by  the  Criminal  Appeals  Act,  34  Statutes  at  Large,  Chapter 
2564,  page  1246. 
§  51.  Limitation  of  review. 

It  is  settled  that  under  that  Act  the  Supreme  Court  has  no 
authority  to  revise  the  mere  interpretation  of  an  indictment. 
The  review  is  confined  solely  to  the  ascertainment  whether  the 


1  Lykins  v.  Chesapeake  &  Ohio  Ry.  Co.,  209  Fed.  573, 126  C.  C.  A.  395. 

*  Louisville  &  N.  R.  R.  Co.  v.  Garrett,  231  U.  S.  298, 320, 34  Sup.  Ct.  Rep.  48, 58 
L.  Ed.  229. 

3  Bacon  v.  Rutland  R.  R.  Co.,  232  U.  S.  134,  34  Sup.  Ct.  Rep.  283,  58  L.  Ed. 
538;  Prentis  v.  Atlantic  Coast  Line  Co.,  211  U.  S.  210,  29  Sup.  Ct.  Rep.  67,  53 
L.  Ed.  150, 160. 

-»  Des  Moines  Car  Co.  v.  Des  Moines,  238  U.  S.  153,  35  Sup.  Ct.  Rep.  829,  59 
L.  Ed.  1244. 

(77) 


Ch.  V)  APPEALS  DIRECT  TO   U.    S.    SUPREME   COURT  §§  52-54 

court  below  erroneously  construed  the  statute  under  which  the 

indictment  was  founded. * 

§  52.  Indictment  bad  in  law  not  reviewable. 

Accordingly  it  has  been  held  that  where  a  demurrer  to  an 
indictment  was  quashed  because  the  counts  contained  therein 
were  "bad  in  law"  the  Supreme  Court  of  the  United  States  was 
without  jurisdiction  to  review  the  judgment  on  appeal  by  the 
government. 3 
§  53.  Misconstruction  of  statute  reviewable. 

A  direct  appeal  by  the  government  lies  to  the  Supreme  Court 
of  the  U.S.  from  a  judgment  dismissing  an  indictment  where  the 
Court  misconstrues  the  statute  upon  which  it  was  founded  or 
overlooks  its  existence. 3 
§  54.  Construction  of  indictment  by  court  below. 

The  limitations  upon  the  jurisdiction  of  the  Supreme  Court  of 
the  United  States  under  the  Criminal  Appeals  Act  are  such  that 
it  must  accept  the  construction  placed  upon  the  counts  of  the 
indictment  by  the  District  Court,  and  its  review  is  limited  to  the 
consideration  whether  the  acts  charged  in  the  indictment  are 
condemned  as  criminal  by  the  statute. 4 

1  United  States  v.  Carter,  231  U.  S.  492,  34  Sup.  Ct.  Rep.  173,  58  L.  Ed.  330; 
United  States  v.  Stevenson,  215  U.  S.  190,  196,  30  Sup.  Ct.  Rep.  35,  54  L.  Ed.  153; 
United  States  v.  Keitel,  211  U.  S.  370,  29  Sup.  Ct.  Rep.  123,  53  L.  Ed.  230. 

2  United  States  v.  Carter,  John  H.,  231  U.S.  492, 34  Sup. Ct. Rep.  173, 58  L.Ed.  330. 

3  United  States  v.  Nixon,  235  U.  S.  231,  35  Sup.  Ct.  Rep.  49,  59  L.  Ed.  207; 
United  States  v.  Portale,  235  U.  S.  27,  35  Sup.  Ct.  Rep.  1,  59  L.  Ed.  Ill;  United 
States  v.  Foster,  233  U.  S.  515,  34  Sup.  Ct.  Rep.  666,  58  L.  Ed.  1074. 

"  U.  S.  v.  Barnow,  239  U.  S.  74,  36  Sup.  Ct.  Rep.  19,  60  L.  Ed.  155 ;  United  States 
v.  Patten,  226  U.  S.  525,  535,  33  Sup.  Ct.  Rep.  141,  57  L.  Ed.  333,  338. 


(78) 


Ch.  VI) 


CIRCUIT   COURT   OF  APPEALS   OF   U.   S. 


CHAPTER    VI 


Jurisdiction  of  the  Circuit  Court  of  Appeals  of  the  United  States 


Sec. 
1. 


3. 


9. 

10. 

11. 
12. 
13. 

14. 


Statutory  provision.  §  128  Federal 
Judicial  Code  defines  powers  and 
jurisdiction  and  includes: 

(a)  Patents. 

(b)  Trademarks. 

(c)  Copyrights. 

(d)  Revenue. 

(e)  Criminal. 

(f)  Admiralty. 

Court  of  Appeals  has  no  jurisdic- 
tion when  jurisdiction  of  court 
below  was  only  question  in  issue. 

When  Court  of  Appeals  has  jurisdic- 
tion when  other  questions  are 
involved. 

Question  of  excess  of  authority  of 
trial  court  reviewable  in  Court  of 
Appeals. 

Power  to  issue  writs  of  prohibition 
and  mandamus  in  aid  of  appellate 
jurisdiction. 

When  jurisdiction  attaches. 

Bankruptcy.  Jurisdiction  of  the 
Circuit  Court  of  Appeals.  Statu- 
tory provisions. 

Review  and  revise. 

By  appeal  in  ten  days. 

Decision  in  the  above  causes  final, 
but  may  be  reviewed  by  certiorari. 

Construction  of  Sections  23,  24,  and 
25  of  the  Bankruptcy  Act. 

Care  should  be  taken  in  selecting 
mode  of  review. 

Section  24b.  Distinction  between 
§  24b  and  controversies  in  bank- 
ruptcy. 

Time  to  bring  petition  to  revise. 


Sec. 

15.  Remedies  exclusive. 

16.  Petition  to  revise  must  assign  error 

of  law. 

17.  When  petition  to  revise  used. 

18.  Decrees  must  have  definiteness  and 

finality. 

19.  Evidence  may  be  reviewed. 

20.  Only  questions  of  law  reviewable  by 

petition  to  revise. 

21.  How  to  review  election  of  trustee. 

22.  Appeals  under  §  25,  Clause  3,  Bank- 

ruptcy Act. 

23.  When  review  is  by  appeal.     Inter- 

vention. 

24.  Plenajy    suits   and    summary    pro- 

ceedings. 

25.  Test  of  summary  jurisdiction. 

26.  Court  may  take  actual  possession 

of  property. 

27.  When  substantiality  appears  plen- 

ary. 

28.  When    referee    has    no    jurisdiction 

over    questions    of     recovery    of 
property.     Adverse  claims. 

29.  Plea  to  jurisdiction  must  be  denied 

by  reply  or  replication. 

30.  Evidence  on  general  inquiry  compe- 

tent only  on  question  of  jurisdic- 
tion. 

31.  Findings  of  referee  not  conclusive. 

32.  Admiralty.     Decision     of     Circuit 

Court  of  Appeals  is  final. 

33.  Prize  causes. 

34.  Seizures  on  land  under  common  law. 

35.  Time  limit  for  appeal — six  months. 

36.  Appeal  is  a  trial  de  novo. 

37.  Assignment  of  error  on  joint  appeals. 

(79) 


Ch.  VI) 


CIRCUIT  COURT  OF  APPEALS  OF   U.   S. 


§1 


Sec. 

38.  The  statute — Record. 

39.  How  the  record  is  made  up  in  ad- 

miralty— The  Apostles. 

40.  One  record  when  both  sides  appeal. 

41.  Contents  of  record. 

42.  Objections  to  evidence — how  availed 

of. 

43.  Stipulating  the  record. 

44.  Filing  record — Time  limit. 

45.  Mandamus  may  be  awarded. 

46.  Docketing. 

47.  New  pleadings. 

48.  New  proof  on  appeal. 

49.  Hearing  on  appeal — Notice  limiting 

questions. 

50.  Tucker  Act,  now  Paragraph  20  of 

Section  24,  Federal  Judicial  Code. 

51.  Interlocutory   Orders   involving 

Injunctions     and     Receivership. 
Statute  permitting  appeal,  §  129 


Sec. 

Federal  Judicial  Code.     Jurisdic- 
tion of  the  Court  of  Appeals. 

52.  Equity  Rule  LXXIV.     Continuing 

injunction  pending  appeal. 

53.  Supersedeas  bond  not  sufficient  to 

suspend  or  continue  injunction. 

54.  Effect  of  appeal  on  pending  cause. 

55.  Scope  of  appeal  limited  to  injunc- 

tion. 

56.  When   injunction    dissolved,    scope 

broadened. 

57.  Enjoining      proceedings     in     State 

courts. 

58.  Federal  Trade  Commission.  Juris- 

diction of  the  Court  of  Appeals. 

59.  Powers  of  the  Commission. 

60.  Procedure  before   Commission  and 

U.  S.  Court  of  Appeals. 

61.  Further  Proof . 

62.  Service  of  process. 


§  i.  Statutory  provision,  §  128  Federal  Judicial  Code,  defines 
powers  and  jurisdiction. 
Sec.  128  of  the  Judicial  Code,  as  amended  January  15,  1915, 
provides : 

"The  Circuit  Court  of  Appeals  shall  exercise  appellate  jurisdiction  to  review 
by  appeal  or  writ  of  error  final  decisions  in  the  district  courts,  including  the 
United  States  District  Court  for  Hawaii,  in  all  cases  other  than  those  in  which 
appeals  and  writs  of  error  may  be  taken  direct  to  the  Supreme  Court,  as  pro- 
vided in  Section  two  hundred  and  thirty-eight,  unless  otherwise  provided  by  law; 
and,  except  as  provided  in  sections  two  hundred  and  thirty-nine  and  two  hun- 
dred and  forty  the  judgments  and  decrees  of  the  circuit  courts  of  appeal  shall  be 
final  in  all  cases  in  which  the  jurisdiction  is  dependent  entirely  upon  the  opposite 
parties  to  the  suit  or  controversy  being  aliens  and  citizens  of  the  United  States, 
or  citizens  of  different  states;  also  in  all  cases  arising  under  the  patent  laws, 
(amended  by  adding  trade-mark  laws,  under  the  copyright  laws,  under  the 
revenue  laws,  and  under  the  criminal  laws,  and  in  admiralty  cases). " 


Under  this  statute  all  cases  of  the  classes  enumerated  therein 
go  to  the  U.  S.  Court  of  Appeals.    There  is  a  class  of  cases  in 
which  the  Court  of  Appeals  has  concurrent  jurisdiction  with  the 
(80) 


Ch.  VI)  CIRCUIT  COURT  OF  APPEALS  OF  U.  S.  §§  2-4 

Supreme  Court.    In  other  cases  the  jurisdiction  of  the  Court  of 
Appeals  is  exclusive.1 

§  2.  Court  of  Appeals  has  no  jurisdiction  when  jurisdiction  of 
court  below  was  only  question  in  issue. 

The  U.  S.  Circuit  Court  of  Appeals  for  the  2d  Circuit  in  the 
case  of  Tyler  Co.  v.  Ludlow-Saylor  Co.,  212  Fed.  155,  dismissed 
an  appeal  for  want  of  jurisdiction  where  the  question  below  turned 
solely  upon  the  question  of  jurisdiction  of  the  court,  holding  that 
under  Sect.  238  of  the  Federal  Judicial  Code  the  appeal  should 
have  been  taken  to  the  U.  S.  Supreme  Court.2 

(a)  Where  the  question  involved  was  the  jurisdiction  of  the 
court  over  a  foreign  corporation,  it  has  been  held  that  the  U.  S. 
Court  of  Appeals  has  jurisdiction.3 

§  3.  When  Court  of  Appeals  has  jurisdiction  when  other  questions 
are  involved. 

When  the  question  of  jurisdiction  and  other  questions  of 
controlling  importance  are  involved,  and  there  is  no  certificate 
by  the  trial  court  that  the  sole  question  below  was  the  jurisdiction 
of  the  court  as  a  Federal  court,  the  Circuit  Court  of  Appeals 
will  entertain  jurisdiction  of  the  whole  case.4 
§  4.  Question  of  excess  of  authority  of  trial  court  reviewable  in 
Court  of  Appeals. 

Where  the  claim  is  made  that  the  trial  court  had  jurisdiction 
over  the  action,  but  that  it  exceeded  its  authority  in  extending  the 
scope  of  the  inquiry  or  proceeding,  an  appeal  lies  only  to  the  Cir- 
cuit Court  of  Appeals.5 

And  this  is  true  where  it  is  established  that  the  District  Court 

1  See  "Certiorari." 

2  The  Court  cites  the  cases  of  Mechanical  Appliance  Co.  v.  Castleman,  215  U.  S. 
437,  30  Sup.  Ct.  Rep.  125,  54  L.  Ed.  272,  and  Herndon  Co.  v.  Norris,  224  U.  S.  496, 
32  Sup.  Ct.  Rep.  550,  56  L.  Ed.  857. 

See  also  Sun  Printing  &  Pub.  Co.,  121  Fed.  827,  58  C.  C.  A.  162. 
s  Rust  v.  United  States  Waterworks  case,  70  Fed.  132,  17  C.  C.  A.  132. 
4  Morgan  v.  Ward,  224  Fed.  698,  703;  Spreckels  Sugar  Refining  Co.  v.  McClain, 
192  U.  S.  397, 407, 24  Sup.  Ct.  Rep.  376,  48  L.  Ed.  496. 
s  Ex  parte  Jim  Hong,  211  Fed.  73,  78  (C.  C.  A.). 

6  (81) 


Ch.  VI)  CIRCUIT  COURT  OF  APPEALS   OF  U.   S.  §§  5~7 

has  jurisdiction  over  the  parties  and  the  subject-matter,  and  the 
court  in  the  exercise  of  such  jurisdiction  commits  error,  such  error 
must  be  brought  for  review  in  the  U.  S.  Circuit  Court  of  Appeals.  * 

Likewise,  when  the  jurisdiction  of  the  court  as  a  Federal  Court 
is  not  involved  or  raised  directly,  the  appeal  must  be  taken  to  the 
Circuit  Court  of  Appeals. 2 

§  5.  Power  to  issue  writs  of  prohibition  and  mandamus  in  aid  of 
appellate  jurisdiction. 

Sect.  12  of  the  Act  of  March  3, 1891,  provides: 

"That  the  Circuit  Couit  of  Appeals  shall  have  the  powers 
specified  in  Section  716  of  the  Rev.  St.  of  U.  S. " 

Under  this  section  it  was  held  that  the  U.  S.  Circuit  Court  of 
Appeals  may  issue  writs  of  mandamus  and  prohibition,  only  in 
aid  of  its  appellate  jurisdiction. 3 

The  Circuit  Court  of  Appeals  has  power  to  issue  a  mandamus 
to  compel  the  performance  of  its  judgments  and  decrees.4 
§  6.  When  jurisdiction  attaches. 

The  appellate  jurisdiction  of  the  Circuit  Court  of  Appeals 
attaches  as  soon  as  the  appeal  or  writ  of  error  is  allowed  and  is 
perfected.3 

§  7.  Bankruptcy.    Jurisdiction  of  the  Circuit  Court  of  Appeals — 
statutory  provisions. 

(a)  Section  130  of  Federal  Judicial  Code. 

1  Smith  v.  McKay,  161  U.  S.  355,  16  Sup.  Ct.  Rep.  490,  40  L.  Ed.  731. 

2  World's  Columbian  Exposition  v.  United  States,  56  Fed.  664,  6  C.  C.  A.  58. 

3  U.  S.  v.  Mayer,  235  U.  S.  55, 35  Sup.  Ct.  Rep.  16,  59  L.  Ed.  129;  U.  S.  v.  Sever- 
ens  (C.  C.  A.),  71  Fed.  768. 

<  Howe  Mach.  Co.  v.  Dayton  (C.  C.  A.),  210  Fed.  803.  Consult  index  on 
"Mandamus." 

s  United  States  v.  Mayer,  235  U.  S.  55,  35  Sup.  Ct.  Rep.  16,  59  L.  Ed.  129;  Old 
Nick  Williams  Co.  v.  United  States,  215  U.  S.  541,  543,  54  L.  Ed.  318,  320,  30  Sup. 
Ct.  Rep.  221;  Mutual  Life  Ins.  Co.  v.  Phinney,  178  U.  S.  327,  335,  44  L.  Ed.  1088, 
1092,  20  Sup.  Ct.  Rep.  906;  Re  Chetwood,  165  U.  S.  443,  456,  41  L.  Ed.  782,  786, 
17  Sup.  Ct.  Rep.  385;  Brooks  v.  Norris,  11  How.  204,  207,  13  L.  Ed.  665,  666; 
McClellan  v.  Garland,  217  U.  S.  268,  30  Sup.  Ct.  Rep.  501,  54  L.  Ed.  762;  In  re 
Rice,  155  U.  S.  396,  15  Sup.  Ct.  Rep.  149,39  L.  Ed.  198;  Ex  parte  Equitable  Trust 
Co.  (C.  C.  A.  9th  Cir.)  231  Fed.  571. 

(82) 


Ch.  VI)  CIRCUIT  COURT  OF  APPEALS  OF  U.   S.  §§  8-11 

(b)  Sections  24  and  25,  Bankruptcy  Act  provides: 

"The  Circuit  Courts  of  Appeals  shall  have  the  appellate  and  supervisory 
jurisdiction  conferred  upon  them  by  the  Act  entitled  'An  Act  to  establish  a 
uniform  system  of  bankruptcy  throughout  the  United  States,'  approved  July 
first,  eighteen  hundred  and  ninety  eight,  and  all  laws  amendatory  thereof,  and 
shall  exercise  the  same  in  the  manner  therein  prescribed. " 

§  8.  Review  and  revise — by  petition  to  revise. 

Section  246  of  the  Bankruptcy  Act  is  as  follows : 

"  The  several  Circuit  Courts  of  Appeal  shall  have  jurisdiction  in  equity,  either 
interlocutory  or  final,  to  superintend  and  revise  in  matters  of  law  the  proceedings 
of  the  several  inferior  courts  of  bankruptcy  within  their  jurisdiction.  Such 
power  shall  be  exercised  on  due  notice  and  petition  by  any  party  aggrieved." 

§  9.  By  appeal  in  ten  days. 

Section  25  of  the  Bankruptcy  Act  is  as  follows : 

"That  appeals,  as  in  equity  cases,  may  be  taken  in  bankruptcy  proceedings 
from  the  courts  of  bankruptcy  to  the  Circuit  Court  of  Appeals  of  the  United 
States  ...  in  the  following  cases,  to  wit: 

"(1)  From  a  judgment  adjudging  or  refusing  to  adjudge  the  defendant  a 
bankrupt;  (2)  from  a  judgment  granting  or  denying  a  discharge;  and  (3)  from  a 
judgment  allowing  or  rejecting  a  debt  or  claim  of  five  hundred  dollars  or  over. 
Such  appeal  shall  be  taken  within  ten  days  after  the  judgment  appealed  from  has 
been  rendered,  and  may  be  heard  and  determined  by  the  Appellate  Court  in 
term  or  vacation,  as  the  case  may  be. " 

§  io.  Decision  in  the  above  causes  final,  but  may  be  reviewed  by 
certiorari. 

By  the  recent  Act  of  Congress  in  effect  January  6,  1916, 
judgments  and  decrees  of  the  Circuit  Court  of  Appeals  in  all 
proceedings  and  causes  arising  under  the  Bankruptcy  Act  are 
made  final,  save  only  that  application  for  certiorari  may  be  made 
to  the  Supreme  Court  as  in  other  cases. 

See  "Certiorari,"  Chapter  VIII. 
§  ii.  Construction  of  Sections  23,  24,  and  25  of  the  Bankruptcy 
Act. 

Sections  23,  24,  and  25  of  the  Bankruptcy  Act  draw  a  clear 
line  of  demarcation  between  "proceedings  in  bankruptcy"  and 

(83) 


Ch.  VI)  CIRCUIT  COURT  OF  APPEALS  OF  U.   S.  §  11 

"controversies  at  law  and  in  equity  arising  in  bankruptcy 
proceedings."  "Proceedings  in  bankruptcy"  cover  questions 
between  the  alleged  bankrupt  or  the  receiver  or  trustee  of  the 
bankrupt  estate,  on  the  one  hand,  and  the  general  creditors,  as 
such,  on  the  other,  commencing  with  the  petition  for  adjudication, 
ending  with  the  discharge,  and  including  matters  of  administra- 
tion generally,  such  as  appointment  of  receivers  and  trustees,  as 
well  as  examinations,  exemptions,  allowance,  and  disallowance  of 
claims,  and  the  like,  all  of  which  naturally  occur  in  the  settlement 
of  the  estate.  "Controversies  at  law  and  in  equity  arising  in  the 
course  of  bankruptcy  proceedings"  involve  questions  between 
the  receiver  or  trustee  representing  the  bankrupt  and  his  general 
creditors,  as  such,  on  the  one  hand,  and  adverse  claimants  on  the 
other,  concerning  property  in  the  possession  of  the  receiver  or 
trustee  or  of  the  claimants,  to  be  litigated  in  appropriate  plenary 
suits,  and  not  affecting  directly  administrative  orders  and  judg- 
ments, but  only  the  extent  of  the  estate  to  be  distributed  ulti- 
mately among  general  creditors.  * 

If  a  creditor  files  and  asks  the  allowance  of  a  claim  as  an 
unsecured  creditor,  he  plainly  institutes  a  "proceeding  in  bank- 
ruptcy. "  And  if  in  connection  with  the  presentation  of  such  a 
claim,  he  asserts  grounds  by  reason  of  which,  in  the  distribution  of 
the  proceeds  of  the  estate,  he  should  be  given  priority  over  other 
general  creditors,2  the  matter  so  presented  nevertheless  remains  a 
"proceeding  in  bankruptcy."  And  even  if  the  trustee  in  his 
answer  admits  and  allows  the  general  claim  and  contests  only  the 
creditor's  right  to  priority,  the  nature  of  the  proceeding  is  not 
affected.    On  the  other  hand,  it  is  clear  that  if  a  claimant  is  in 

1  Matter  of  Loving,  224  U.  S.  183,  32  Sup.  Ct.  446,  56  L.  Ed.  725;  United  States 
Fidelity  Co.  v.  Bray,  225  U.  S.  205, 217, 32  Sup.  Ct.  620, 56  L.  Ed.  1055;  In  re  Mueller, 
135  Fed.  711,  68  C.  C.  A.  349;  In  re  Friend,  134  Fed.  778,  67  C.  C.  A.  500;  In  re 
Breyer  Printing  Co.,  216  Fed.  878. 

a  Coder  v.  Arts,  213  U.  S.  223,  29  Sup.  Ct.  436,  53  L.  Ed.  772, 16  Ann.  Cas.  1008; 
Matter  of  Loving,  224  U.  S.  183,  32  Sup.  Ct.  446,  56  L.  Ed.  725;  In  re  Streator  Metal 
Stamping  Co.,  205  Fed.  280,  123  C.  C.  A.  444;  In  re  Breyer  Printing  Co.,  216  Fed. 
878,  C.  C.  A.  (7th  Cir.). 

(84) 


Ch.  VI)  CIRCUIT   COURT   OF   APPEALS   OF   U.    S.  §  12 

possession  of  chattels  under  a  bill  of  sale  or  mortgage,  and  if 
subsequent  to  his  possession  a  petition  in  bankruptcy  is  filed 
and  an  adjudication  in  bankruptcy  had  against  his  grantor  or 
mortgagor,  and  if  thereafter  the  receiver  or  trustee  of  the  bank- 
rupt estate  disputes  the  holder's  right  of  possession,  a  controversy 
arises  which  is  outside  of  the  matter  of  the  administration  of  the 
bankrupt  estate.  The  property  in  question  has  not  come  into  the 
custody  of  the  bankruptcy  court  or  of  the  receiver  or  trustee 
under  and  by  virtue  of] the  adjudication.  If  the  holder  maintains 
his  possession  and  the  trustee  is  compelled  to  bring  a  suit  against 
him  either  in  the  bankruptcy  court  or  some  other  court  to  cancel 
the  alleged  title  or  lien  and  to  recover  the  property,  the  resulting 
order  or  decree  could  not  be  reviewed  under  24b  or  25a  for  the 
reason  that  the  proceeding  resulting  in  such  order  or  decree  was 
not  a  "proceeding  in  bankruptcy"  within  the  administration  of 
the  estate.  And  the  essential  nature  of  the  controversy  respecting 
the  holder's  title  or  lien  cannot,  in  our  opinion,  be  affected  by  the 
question  whether  the  suit  to  determine  the  validity  of  the  alleged 
title  or  lien  is  begun  by  the  petition  or  bill  of  the  trustee  or  of  the 
adverse  claimant. 

An  order  rejecting  or  allowing  a  claim  by  a  landlord  for 
rent  against  a  trustee  in  bankruptcy  is  reviewable  by  appeal 
only.1 
§  12.  Care  should  be  taken  in  selecting  mode  of  review. 

A  defeated  party  is  not  at  liberty  to  disregard  the  appro- 
priate appellate  remedy  provided  for  his  case  and  choose  some 
other  that  may  better  suit  his  inclination  or  convenience.2  And 
this  remains  true,  although  the  appellate  court  may  allow  a  writ 
of  error  which  is  addressed  to  questions  of  law  involved  in  a 
"proceeding  in  bankruptcy"  to  stand  as  a  petition  to  review  and 


1  In  re  Breyer  Printing  Co.,  216  Fed.  878  (C.  C.  A.  7th  Cir.). 
.  a  Matter  of  Loving,  224  U.  S.  187,  32  Sup.  Ct.  446,  56  L.  Ed.  725;  United  States 
v.  Beatty,  232  U.  S.  463, 34  Sup.  Ct.  392,  58  L.  Ed.  686;  In  re  Friend,  134  Fed.  778, 
780,  67  C.  C.  A.  500. 

(85) 


Ch.  VI)  CIRCUIT  COURT  OF  APPEALS  OF  U.   S.  §§  13-17 

revise,  since  both  are  ranged  on  the  same  side  of  the  demarcating 
line  and  the  methods  are  substantially  alike.1 

But  the  U.  S.  Circuit  Courts  of  Appeals  in  order  to  save  the 
remedy  have  entertained  both  appeal  and  petitions  to  revise. 2 
§  13.  Section  24b.     Distinction  between  §  24b  and  controversies 
in  bankruptcy. 

Section  24b  of  the  Bankruptcy  Act  relates  only  to  proceedings 
in  bankruptcy,   as  distinguished  from  controversies  arising  in 
bankruptcy  and  from  plenary  suits.3 
§  14.  Time  to  bring  petition  to  revise. 

In  the  Second  Circuit,  a  petition  to  revise  must  be  served  and 
filed  within  ten  days  after  order  is  entered. 4 
§  15.  Remedies  exclusive. 

The  remedies  by  appeal  and  petition  to  revise  are  independent 
and  exclusive  of  each  other. s 
§  16.  Petition  to  revise  must  assign  error  of  law. 

A    petition    to    revise    must  assign   some   specific  error   of 
law. 6 
§  17.  When  petition  to  revise  used. 

(a)  Summary  proceedings  are  reviewable  only  by  a  petition 
to  revise.7 

(b)  Where  it  is  sought,  to  present  to  the  Circuit  Court  of 

1  Freed  v.  Central  Trust  Co.,  215  Fed.  873,  132  C.  C.  A.  7th;  In  re  Breyer,  216 
Fed.  878  (C.  C.  A.  7th  Cir.). 

2  Shea  v.  Lewis,  206  Fed.  877  (C.  C.  A.). 

3  Coder  v.  Arts,  213  U.  S.  223,  233,  235,  29  Sup.  Ct.  Rep.  436,  53  L.  Ed.  772;  In 
re  Loving,  224  U.  S.  183,  32  Sup.  Ct.  Rep.  446,  50  L.  Ed.  725;  In  re  Mueller,  135 
Fed.  711,  715;  Barnes  v.  Pampel  (C.  C.  A.),  192  Fed.  525,  527;  Kraijer  v.  Snare  & 
Triest  Co.,  et  al.,  221  Fed.  255. 

*  Rule  38  of  the  C.  C.  A.  2d  Circuit;  In  re  Vanascope,  233  Fed.  53;  In  re  Tanen- 
haus,  211  Fed.  971  (C.  C.  A.  2d  Cir.). 

s  Bothwell  v.  Fitzgerald,  219  Fed.  408  (C.  C.  A.) ;  In  re  Gold,  210  Fed.  410;  In  re 
Martin,  201  Fed.  31,  119  C.  C.  A.  363;  Southern  Cotton  Mills  v.  Elliott,  218  Fed. 
567  (C.  C.  A.) ;  Rison  v.  Parkham,  219  Fed.  176. 

«Huttig  v.  Sash  Co.,  218  Fed.  1  (C.  C.  A.);  In  re  Witherbee,  202  Fed.  896,  121 
C.  C.  A.  254;  Pindel  v.  Holgate  (C.  C.  A.),  221  Fed.  312. 

7  In  re  Goldstein,  216  Fed.  887  (C.  C.  A.);  Gibbons  v.  Goldsmith,  222  Fed. 
826. 

(86) 


Ch.  VI)  CIRCUIT  COURT  OF  APPEALS   OF  U.   S.  §  17 

Appeals  the  question  whether  the  District  Court  erroneously 
exercised  jurisdiction  to  determine  the  merits  of  an  adverse  claim 
to  property,  the  question  of  law  so  raised  is  a  question  of  a  bank- 
ruptcy proceeding,  and  it  is  reviewable  by  a  petition  to  revise 
under  Section  24b  of  the  Bankruptcy  Act.1 

(c)  It  is  conclusively  established  that  where  a  court  of  bank- 
ruptcy has  erroneously  retained  jurisdiction  to  adjudicate  the 
rights  of  an  adverse  claimant,  its  action  may  be  reviewed  by 
a  petition  for  review. 2 

(d)  Decisions  of  the  District  Court  denying  application  of  a 
creditor  to  set  aside  an  order  of  adjudication  in  bankruptcy  are 
reviewable  only  by  a  petition  to  revise.3 

(e)  Orders  granting  or  refusing  a  discharge  in  bankruptcy  are 
reviewable  only  by  a  petition  to  revise.4 

(f )  A  petition  to  revise  and  not  appeal  is  the  proper  remedy  to 
review  a  decision  of  the  District  Court  made  on  application  of 
creditors  for  an  order  on  the  trustee  to  turn  over  certain  property 
in  his  hands.5 

(g)  An  order  dismissing  the  petition  of  a  trustee,  the  petition 
involving  dividends,  is  reviewable  by  a  petition  to  revise.6 

1  Gibbons  v.  Goldsmith,  222  Fed.  828;  Mueller  v.  Nugent,  184  U.  S.  1,  22  Sup. 
Ct.  Rep.  269,  46  L.  Ed.  405;  Louisville  Trust  Co.  v.  Comingor,  184  U.  S.  18,  22 
Sup.  Ct.  Rep.  293,  46  L.  Ed.  413;  Schweer  v.  Brown,  195  U.  S.  171,  25  Sup.  Ct. 
Rep.  15,  49  L.  Ed.  144;  First  Nat.  Bank  v.  Chicago  Title  &  Trust  Co.,  198  U.  S.  280, 
25  Sup.  Ct.  Rep.  693,  49  L.  Ed.  1051;  In  re  Gill,  190  Fed.  726;  In  re  McMahon, 
147  Fed.  684-687;  In  re  Blum,  202  Fed.  883;  Shea  v.  Lewis,  206  Fed.  877;  In  re  Gold- 
stein &  Moseson,  216  Fed.  887. 

2  Shea  v.  Lewis,  206  Fed.  877  (C.  C.  A.  8th  Circ.) ;  In  re  Gill  and  In  re  Farmers  & 
Mfg.  Bank  of  Rich  Hill,  190  Fed.  726,  111.  C.  C.  A.  545;  Mueller  v.  Nugent,  184  U.  S. 
1-15,  22  Sup.  Ct.  269,  46  L.  Ed.  144;  First  National  Bank  v.  Title  &  Trust  Co.,  198 
U.  S.  280, 25  Sup.  Ct.  693,  49  L.  Ed.  1051. 

3  Hart-Parr  Co.  v.  Barkley  (C.  C.  A.  8th  Cir.),  231,  Fed.  913. 

i  In  re  Vanoscope  Co.  (C.  C.  A.  2d  Cir.),  233  Fed.  53;  Brady  v.  Bernard  &  Kitt- 
myer,  170 Fed.  576,  95  C.  C.  A.  656;  Electric  Co.  v.  ^Etna  Life  Ins.  Co.,  206  Fed.  885, 
124  C.  C.  A.  595. 

sin  re  Pierson  (C.  C.  A.  2d  Cir.),  233  Fed.  519;  In  re  Rose  oe  ShMfg.  Co.,  168  Fed. 
39,  93  C.  C.  A.  461. 

6  Nelson  v.  Hecksher,  219  Fed.  682. 

(87) 


Ch.  VI)  CIRCUIT  COURT  OF  APPEALS  OF   U.   S.  §§  18~22 

§  18.  Decrees  must  have  definiteness  and  finality. 

Only  such  decrees  as  have  definiteness  and  finality  can  be 
reviewed  on  petition  to  revise.1 
§  19.  Evidence  may  be  reviewed. 

On  a  petition  to  revise,  the  evidence  will  be  examined  to 
ascertain  if  the  order  of  the  District  Court  is  wholly  unsupported 
thereby,  contrary  to  law,  a  clear  mistake,  or  generally  for  any 
reason  for  which  evidence  may  be  reviewed  on  writ  of  error. 2 

The  court  may  examine  the  evidence  for  the  purpose  of  as- 
certaining whether  there  was  any  substantial  evidence  to  sustain 
the  order. 3 
§  20.  Only  questions  of  law  reviewable  by  petition  to  revise. 

Disputed  questions  of  fact  cannot  be  tried  out  by  a  petition 
to  revise.4 

Only  questions  of  law  can  be  so  tested  out.s 
§  21.  How  to  review  election  of  trustee. 

The  proper  way  to  review  the  proceedings  in  the  matter  of  the 
election  of  a  trustee  is  by  a  petition  for  review  of  the  order  of  the 
referee  approving  the  appointment  of  the  trustee  of  the  creditors. 6 
§  22.  Appeals  under  §25  Clause  3,  Bankruptcy  Act. 

Clause  3  of  Section  25  of  the  Bankruptcy  Act  provides  that 
appeals  as  in  equity  cases  may  be  taken  in  bankruptcy  proceed- 
ings from  the  courts  of  bankruptcy  to  the  Circuit  Court  of 
Appeals,  from  a  judgment  allowing  or  rejecting  a  debt  or  claim 
of  $500  or  over.7 

1  In  re  Chottiner,  218  Fed.  813,  134  C.  C.  A.  501. 

3  Johnston  v.  Spencer,  195  Fed.  215,  115  C.  C.  A.  167;  Shea  v.  Lewis,  206  Fed. 
877  (C.  C.  A.) ;  First  National  Bank  v.  Cole,  144  Fed.  392, 75  C.  C.  A.  330. 

3  Good  v.  Kane,  211  Fed.  956,  128  C.  C.  A.  454. 

4  In  re  Witherbee,  202  Fed.  896, 121  C.  C.  A.  254. 
s  Nelson  v.  Boyd,  213  Fed.  587,  130  C.  C.  A. 

6  In  re  Henry  Siegel  Co.,  216  Fed.  943;  5  Am.  Bankr.  Rep.  155;  In  re  Gill,  106 
Fed.  57,  45  C.  C.  A.  218;  8  Am.  Bankr.  Rep.  85;  In  re  Dayville  Woolen  Co.,  114 
Fed.  674;  12  Am.  Bankr.  Rep.  94;  In  re  Gordon  S.  &  M.  Co.,  129  Fed.  622. 

7  In  re  Mueller,  135  Fed.  711;  Bothwell  v.  Fitzgerald,  219  Fed.  408;  Matter  of 
Loving,  224  U.  S.  183,  32  Sup.  Ct.  Rep.  446,  56  L.  Ed.  725;  Pindel  v.  Holgate,  221 
Fed.  347. 

(88) 


Ch.  VI)  CIRCUIT  COURT  OF  APPEALS  OF  U.   S.  §  23 

Each  method  of  procedure  for  the  review  of  orders  in  bank- 
ruptcy is  exclusive  of  the  other. 
§  23.  When  review  is  by  appeal.    Intervention. 

(a)  Where  an  independent  petition  in  the  nature  of  an  inter- 
vention is  filed  in  the  bankruptcy  court  and  the  claim  is  denied, 
an  appeal  is  the  proper  mode  of  review  and  not  a  petition  to 
revise. * 

An  intervention  in  a  bankruptcy  court  for  the  purpose  of 
asserting  a  title  or  claim  to  the  property  in  the  possession  of  the 
bankrupt's  trustee  is  an  intervention  in  equity,  and  a  decree  is 
reviewable  by  appeal  to  the  Circuit  Court  of  Appeals  in  the  exer- 
cise of  its  general  appellate  powers  in  equity  cases  under  §  24a  of 
the  Bankruptcy  Act.2 

Wherever  a  third  person  intervenes  in  the  bankruptcy  court 
and  asserts  an  independent  and  superior  title  to  the  property  held 
by  the  trustee,  claiming  the  right  to  recover  and  remove  the  same 
from  the  jurisdiction  of  the  bankruptcy  court  as  part  of  the  estate 
to  be  administered,  he  institutes  a  controversy  in  a  bankruptcy 
proceeding,  whether  he  intervenes  by  an  original  petition,  or  is 
brought  into  court  upon  the  application  of  the  trustee,  and  to 
review  the  judgment  of  that  court  his  remedy  is  by  an  appeal 
under  the  provisions  of  Section  25b.3 

(b)  A  decision  of  the  District  Court,  sitting  in  bankruptcy, 

1  Southern  Cotton  Oil  Co.  v.  Elliott,  218  Fed.  567  (C.  C.  A.) ;  Barton  Lumber  & 
Brick  Co.  v.  Prewitt  (C.  C.  A.),  231  Fed.  919. 

2  Houghton  v.  Burdon,  228  U.  S.  161,  172,  33  Sup.  Ct.  Rep.  491,  57  L.  Ed.  780 
Knapp  v.  Milwaukee  Trust  Co.,  216  U.  S.  545,  30  Sup.  Ct.  Rep.  412,  54  L.  Ed.  610 
Hewitt  v.  Berlin  Machine  Works,  194  IT.  S.  296, 24  Sup.  Ct.  Rep.  690, 48  L.  Ed.  986 
Hurley  v.  Atchison  T.  &  S.  F.  R.  Co.,  213  U.  S.  126,  29  Sup.  Ct.  Rep.  466,  53  L.  Ed. 
729. 

3  Coder  v.  Arts,  213  U.  S.  223,  29  Sup.  Ct.  Rep.  436,  53  L.  Ed.  772;  Hewitt  v. 
Berlin  Machine  Works,  194  U.  S.  296,  24  Sup.  Ct.  Rep.  690,  48  L.  Ed.  986;  Knapp 
v.  Milwaukee  Trust  Co.,  216  U.  S.  545,  30  Sup.  Ct.  Rep.  412,  54  L.  Ed.  610;  Hough- 
ton v.  Burden,  228  U.  S.  161,  33  Sup.  Ct.  Rep.  491,  57  L.  Ed.  780;  Loeser  v.  Savings 
Deposit  Bank  &  Trust  Co.,  163  Fed.  212;  In  re  Hartzell,  209  Fed.  775;  In  re 
McMahon,  147  Fed.  685;  In  re  Rochford,  124  Fed.  182;  Galbraith  v.  Robson-Hilliard 
Grocery  Co.,  216  Fed.  842;  Gibbons  v.  Goldsmith,  222  Fed.  828. 

(89) 


Ch.  VI)  CIRCUIT  COURT  OF  APPEALS   OF  U.   S.  §  24 

granting  or  refusing  a  lien  or  priority  against  a  bankrupt  estate 
where  the  amount  involved  exceeds  $500  can  be  reviewed  only  by 
appeal  and  not  by  a  petition  to  revise. * 

(c)  A  decree  setting  aside  a  conveyance  made  by  a  bankrupt 
in  fraud  of  creditors  is  reviewable  only  by  appeal  and  not  by  writ 
of  error. 2 

(d)  An  interlocutory  decree  of  the  U.  S.  District  Court  sitt:ng 
in  bankruptcy  restraining  proceedings  in  a  state  court  and  for  the 
appointment  of  a  receiver  is  reviewable  by  appeal  under  §  24a  of 
the  Bankruptcy  Act,  and  not  by  petition  to  revise.3 

(e)  An  order  rinding  that  an  obligation  has  been  paid  is 
reviewable  by  appeal.4 

(f)  A  controversy  between  landlord  and  tenant  is  reviewable 
by  appeal.5 

§  24.  Plenary  suits  and  summary  proceedings. 

There  are  two  classes  of  cases  arising  under  the  Act  of  1S98  and 
controlled  by  different  principles.  The  first  class  is  where  there 
is  a  claim  of  adverse  title  to  property  of  the  bankrupt,  based  upon 
a  transfer  antedating  the  bankruptcy.  The  other  class  is  where 
there  is  no  claim  of  adverse  title  based  on  any  transfer  prior  to 
the  bankruptcy,  but  where  the  property  is  in  the  physical  posses- 
sion of  a  third  party,  or  of  an  officer  of  a  bankrupt  corporation, 
who  refuses  to  deliver  it  to  the  trustee  in  bankruptcy.  In  the 
former  class  of  cases  a  plenary  suit  must  be  brought,  either  at  law 
or  in  equity,  by  the  trustee,  in  which  the  adverse  claim  of  title 
can  be  tried  and  adjudicated.  In  the  latter  class  it  is  not  necessary 
to  bring  a  plenary  suit,  but  the  bankruptcy  court  may  act  sum- 

1  New  Hampshire  Savings  Bank  v.  Varner,  216  Fed.  721;  Coder  v.  Arts,  152  Fed. 
943,  82  C.  C.  A.  91,  affirmed  in  213  U.  S.  223,  29  Sup.  Ct.  Rep.  436,  53  L.  Ed.  772; 
Matter  of  Loving,  224  U.  S.  183,  32  Sup.  Ct.  Rep.  446,  56  L.  Ed.  725;  In  re  Hartzell, 
209  Fed.  775;  In  re  Streator  Metal  Stamping  Co.,  205  Fed.  280, 123  C.  C.  A.  444. 

a  Carey  v.  Donohue,  209  Fed.  328,  C.  C.  A.  6th  Cir. 

s  Bothwcll  v.  Fitzgerald,  219  Fed.  (C.  C.  A.)  408. 

4  Rison  v.  Parham,  219  Fed.  176 ;  In  re  Breyer  Printing  Co.,  216  Fed.  878,  C.  C.  A. 
7th  Cir. 

s  Courtney  v.  Fidelity  Trust  Co.,  219  Fed.  57. 

(90) 


Ch.  VI)  CIRCUIT  COURT  OF  APPEALS  OF   U.    S.  §§  25~26 

marily  and  may  make  an  order  in  a  summary  proceeding  for  the 
delivery  of  the  property  to  the  trustee,  without  the  formality  of  a 
formal  litigation. x 
§  25.  Test  of  summary  jurisdiction. 

The  jurisdiction  of  the  bankruptcy  court  to  determine  in  a 
summary  proceeding  adverse  claims  created  before  the  filing  of 
the  petition  in  bankruptcy  to  liens  upon  and  titles  to  property 
claimed  by  the  trustee  as  that  of  the  bankrupt  is  conditioned  and 
limited  by  its  actual  possession  thereof. 

The  test  of  the  summary  jurisdiction  is  that  the  court  of 
bankruptcy,  through  the  act  of  its  officers,  such  as  referees, 
receivers,  or  trustees,  has  taken  possession  of  the  res  as  the 
property  of  the  bankrupt. 

The  declaration  in  Mueller  v.  Nugent,  184  U.  S.  1-14,  22  Sup. 
Ct.  269,  275  (46  L.  Ed.  405),  that  the  filing  of  the  petition  .  .  . 
"is  a  caveat  to  all  the  world  and  in  effect  an  attachment  and 
injunction, "  has  been  so  limited  by  subsequent  decisions  of  the 
Supreme  Court  that  it  has  no  application  to  those  holding  sub- 
stantial claims  antedating  the  filing,  to  liens  upon  or  titles  to 
property  claimed  as  that  of  the  bankrupt.  In  the  absence  of 
proper  proceedings  to  make  such  claimants  parties  to  the  bank- 
ruptcy proceeding,  they  are  strange  thereto,  and  their  claims  are 
unaffected  thereby. 3 
§  26.  Court  may  take  actual  possession  of  property. 

The  bankruptcy  court  has  jurisdiction  to  draw  to  itself,  and 
to  determine  by  summary  proceedings  after  reasonable  notice  to 
claimants,  the  merits  of  controversies  between  the  trustee  and 
such  claimants  over  liens  upon  and  title  to  property  claimed  by 

*In  re  Goldstein,  216  Fed.  887;  Mueller  v.  Nugent,  184  U.  S.  1,  22  Sup.  Ct. 
269,  46  L.  Ed.  405;  In  re  Blum,  202  Fed.  883,  121  C.  C.  A.  241;  Shea  v.  Lewis, 
206  Fed.  877,  124  C.  C.  A.  537;  In  re  Yorkville  Coal  Co.  (C.  C.  A.)  211  Fed. 
619;  Babbitt  v.  Dutcher,  216  U.  S.  102,  30  Sup.  Ct.  372,  54  L.  Ed.  402,  17  Ann. 
Cas.  969. 

*  In  re  Rathman,  183  Fed.  913,  106  C.  C.  A.  253,  per  Sanborn,  J.  Mueller  v. 
Nugent,  184  U.  S.  1-14, 22  Sup.  Ct.  269, 275,  46  L.  Ed.  405. 

(91) 


Ch.  VI)  CIRCUIT  COURT  OF  APPEALS  OF  U.   S.  §  27 

the  trustees  as  that  of  the  bankrupt  which  has  been  lawfully 
reduced  to  the  actual  possession  of  the  trustee  or  of  some  other 
officer  of  the  bankruptcy  court  as  the  property  of  the  bank- 
rupt. When  those  in  possession  are  not  adverse  claimants, 
but  are  only  representatives  of  the  bankrupt,  without  claim 
or  lien  upon,  or  right  to,  the  property  in  themselves,  the 
bankruptcy  court  may  by  summary  proceeding  take  the 
actual  possession  of  the  property,  and  then,  when  it  has 
thus  acquired  the  actual  possession,  may  by  summary  pro- 
ceedings determine  the  validity  of  claims  or  liens  upon  and 
titles  to  it.1 

§  27.    When     substantiality    appears     necessity    for     plenary 
suit. 

The  District  Court  may  pursue  the  summary  method  to  the 
point  of  ascertaining  that  the  alleged  adverse  claim  is  substantial 
and  not  merely  colorable.  But  substantiality  appears  as  soon  as 
the  claimant,  in  response  to  the  rule  to  show  cause,  presents  his 
verified  answer,  which  is  not  met  by  the  trustee,  or  which,  if  met 
by  a  replication,  is  supported  by  sworn  testimony  of  facts  which, 
if  true,  would  show  title  and  possession  antedating  the  petition  in 
bankruptcy.  A  conclusion  that  the  alleged  adverse  claim  is  a 
cover  for  the  claimant's  possession  as  agent  or  bailee  of  the  bank- 
rupt cannot  be  permitted  to  be  reached  by  the  District  Court's 
rejection  of  the  sworn  answer  and  testimony,  and  thereupon 
finding  that  the  alleged  adverse  claim  is  fraudulent.  That  end 
can  only  be  attained  if  it  is  the  just  conclusion  of  a  due  trial  of  a 
plenary  suit. 2 

In  such  cases  a  plenary  suit  must  be  brought  either  at  law  or 

1  In  re  Rathman,  supra,  183  Ped.ps.  922-923,106  C.  C.  A.  253;  Shea  v.  Lewis,  206 
Fed.  880-881. 

a  In  re  Goldstein,  216  Fed.  887;  Mueller  v.  Nugent,  184  U.  S.  1,  22  Sup.  Ct.  269, 
46  L.  Ed.  405;  In  re  Blum,  202  Fed.  883,  121  C.  C.  A.  241;  Shea  v.  Lewis,  206  Fed. 
877,  124  C.  C.  A.  537;  In  re  Yorkville  Coal  Co.  (C.  C.  A.)  211  Fed.  619;  Babbitt  v. 
Dutcher,  216  U.  S.  102,  30  Sup.  Ct.  372,  54  L.  Ed.  402,  17  Ann.  Cas.  969,  but  see  R. 
&  W.  Shirt  Co.,  222  Fed.  256  (C.  C.  A.  2nd  Cir.). 

(92) 


Ch.  VI)  CIRCUIT  COURT  OF  APPEALS  OF  U.   S.  §§  2S-30 

in  equity  by  the  trustee,  in  which  the  adverse  claim  of  title  can  be 
tried  and  adjudicated.1 

§  28.  When  referee  has  no  jurisdiction   over  questions  of  re- 
covery of  property.    Adverse  claims. 

It  is  well  settled  that  where  one  seeks  to  recover  property 
from  an  adverse  claimant  for  the  estate  of  the  bankrupt  such  is  not 
a  proceeding  in  bankruptcy  and  the  referee  is  without  jurisdiction 
to  hear  and  determine  any  questions  arising  thereon.2 
§  20.  Plea  to  jurisdiction  must  be  denied  by  reply  or  replication. 

The. averments  in  the  plea  to  the  jurisdiction  of  the  court  as 
set  forth  in  the  answer  must  be  denied  by  a  reply  or  replication, 
and  if  not  so  denied,  an  order  overruling  same  is  erroneous  and 
must  be  reversed. 3 

§  30.  Evidence  on  general  inquiry  competent  only  on  question  of 
jurisdiction. 

The  transcript  of  the  evidence  taken  upon  the  general  inquiry 
to  discover  assets  before  the  filing  of  the  petition  against  the 
petitioners  is  only  competent  for  the  sole  purpose  of  inquiring 
whether  the  District  Court  had  jurisdiction  to  inquire  into  this 
matter  in  a  summary  manner.  It  is  not  competent  for  the  pur- 
pose of  deciding  the  merits  of  the  case.  This  could  not  be  done 
even  by  consent.4 

1  Johnston  v.  Spencer,  195  Fed.  215,  115  C.  C.  A.  167;  Shea  v.  Lewis,  206 
Fed.  877  (C.  C.  A.);  Bardes  v.  Howarden  Bank,  178  U.  S.  524,  532,  20  Sup.  Ct. 
1000,  44  L.  Ed.  1175;  Louisville  Trust  Co.  v.  Comingor,  184  U.  S.  18,  22  Sup. 
Ct.  293,  46  L.  Ed.  413;  First  National  Bank  v.  Title  &  Trust  Co.,  198  U.  S.  280, 
25  Sup.  Ct.  693,  49  L.  Ed.  1051;  Murphy  v.  John  Hofman  Co.,  211  U.  S.  562-570, 
29  Sup.  Ct.  154,  53  L.  Ed.  327;  Babbitt  v.  Dutcher,  216  U.  S.  102-113,  30  Sup.  Ct. 
372,  54  L.  Ed.  402,  17  An.  Cas.  969;  Courtney  v.  Collins,  176  Fed.  189,  99  C.  C.  A. 
543. 

"Loveland,  On  Bankruptcy,  Vol.  2,  §  540;  Louisville  Trust  Co.  v.  Comingor, 
184  U.  S.  18,  22  Sup.  Ct.  293,  46  L.  Ed.  413;  In  re  Hayden  (D.C.),  172  Fed.  623;  First 
National  Bank  of  Chicago  v.  Chicago  Title  &  Trust  Co.,  198  U.  S.  280,  25  Sup.  Ct. 
693, 49  L.  Ed.  1051 ;  Augusta  Grocery  Co.  v.  Southern  Moline  Plow  Co.,  213  Fed.  786. 

J  In  re  Gill,  190  Fed.  726,  111  C.  C.  A.  454. 

*  Ex  parte  Comingor-Sinsheiner,  et  al.,  v.  Simmonton,  107  Fed.  898  (C.  C.  A.  6th 
Cir.);  Haffenberg  v.  Chicago  Title  and  Trust  Co.,  192  Fed.  874. 

(93) 


Ch.  VI)  CIRCUIT  COURT  OF  APPEALS  OF   U.   S.  §§  31-36 

§31.  Findings  of  referee  not  conclusive. 

The  findings  of  a  referee  in  bankruptcy  are  not  conclusive, 
and  will  be  set  aside  where  the  court  is  of  the  opinion  they  are 
manifestly  erroneous. * 

§  32.  Admiralty.      Decision  of   Circuit  Court  of  Appeals  is 
final. 

An  appeal  in  admiralty  must  be  taken  only  to  the  U.  S.  Circuit 
Court  of  Appeals  by  service  of  a  notice  of  appeal  and  filing  bond 
in  the  sum  of  $250. 2 

The  Act  of  March  6,  1891,  vests  in  the  U.  S.  Circuit  Court  of 
Appeals  appellate  jurisdiction  in  admiralty  cases,  and  the  de- 
cisions of  that  court  are  final  and  non-appealable.  The  only  mode 
of  reviewing  the  final  judgment  of  the  U.  S.  Court  of  Appeals  is  by 
a  petition  for  certiorari  to  the  Supreme  Court  of  the  U.  S.  (See 
Certiorari.) 
§  33.  Prize  causes.     (See  Chapter  V.  §  24.) 

Appeals  in  admiralty  cases  lie  to  the  Circuit  Court  of  Appeals 
and  only  in  prize  cases  direct  to  the  Supreme  Court.3 
§  34.  Seizures  on  land  under  common  law. 

As  to  seizures  on  land,  the  District  Court  proceeds  as  a  court 
of  common  law  and  not  as  a  court  of  admiralty.4 
§  35.  Time  limit  for  appeal  six  months. 

Six  months  is  the  limit  within  which  to  take  an  appeal  in  an 
admiralty  case.  A  rule  of  court  fixing  a  shorter  period  is  invalid. 5 
§  36.  Appeal  is  a  trial  de  novo. 

An  appeal  in  admiralty  brings  up  for  review  the  whole  tes- 
timony and  is  virtually  a  trial  de  novo.    The  Clerk  of  the  District 

1  In  re  Miner,  9  Am.  Bankr.  Rep.  p.  100, 117  Fed.  953;  In  re  Elmore  Cotton 
Mills  (D.C.),  217  Fed.  819. 

2  Admiralty  Rule  I. 

3  See  §  238  of  Federal  Judicial  Code  and  see  "  Admiralty." 

4  433  Cans  of  Frozen  Egg  Products  v.  U.  S.,  226  U.  S.  179,  33  Sup.  Ct.  Rep.  50, 
57  L.  Ed.  174. 

s  Robins  Dry  Dock  &  Repair  Co.  v.  Chesborough,  216  Fed.  122  (C.  C.  A.  1st 
Circuit);  In  re  City  of  Naples,  69  Fed.  794,  16  C.  C.  A.  421  (8th  Circuit);  The  New 
York,  104  Fed.  561,  44  C.  C.  A.  38  (2d  Circuit). 

(94) 


Ch.  VI)  CIRCUIT  COURT   OF   APPEALS  OF   U.    S.  §§  37-39 

Court  is  charged  with  the  duty  of  preserving  all  charts  marked 

and  introduced  in  evidence. x 

§  37.  Assignment  of  error  on  joint  appeals. 

Where  both  sides  appeal  in  admiralty,  either  side  may  assign 
error. 2 
§  38.  The  statute — Record. 

Upon  the  appeal  of  any  cause  in  equity  or  of  admiralty  and 
maritime  jurisdiction,  or  of  prize  or  no  prize,  a  transcript  of  the 
record,  as  directed  by  law  to  be  made  and  copies  of  the  proofs 
and  of  such  entries  and  papers  on  file  as  may  be  necessary  on  the 
hearing  of  the  appeal  shall  be  transmitted  to  the  Supi  erne  Court : 
Provided,  That  either  the  court  below  or  the  Supreme  Court  may 
order  any  original  document  or  other  evidence  to  be  sent  up,  in 
addition  to  the  copy  of  the  record,  or  in  lieu  of  a  copy  of  a  part 
thereof. 3 
§  39.    How  the  record  is  made  up  in  admiralty.    The  apostles. 

Rule  4  of  the  Circuit  Court  of  Appeals  for  the  Second  Circuit, 
ordains  that  the  record  in  cases  of  admiralty  and  maritime 
jurisdiction  shall  be  made  up  as  follows: 

"  (1)  A  caption  exhibiting  the  proper  style  of  the  court  and  the  title  of  the 
cause,  and  a  statement  showing  the  time  of  the  commencement  of  the  suit ;  the 
names  of  the  parties,  setting  forth  the  original  parties  and  those  who  have 
become  parties  before  the  appeal,  if  any  change  has  taken  place;  the  several 
dates  when  the  respective  pleadings  were  filed;  whether  or  not  the  defendant 
was  arrested,  or  bail  taken,  or  property  attached,  or  arrested,  and  if  so,  an 
account  of  the  proceedings  thereunder;  the  time  when  the  trial  was  had  and  the 
name  of  the  judge  hearing  the  same;  whether  or  not  any  question  was  referred 
to  a  commissioner  or  commissioners,  and,  if  so,  the  result  of  the  proceedings 
and  the  report  thereon;  the  date  of  the  entry  of  the  interlocutory  and  final 
decrees ;  and  the  date  when  the  notice  of  appeal  was  filed. 


1  The  Catawissa,  213  Fed.  14  (C.  C.  A.  2d  Cir.);  The  State  of  California,  49  Fed. 
175,  C.  C.  A.;  Reed  v.  American  Express  Co.,  241  U.  S.  544,  36  Sup.  Ct.  Rep.  712, 
60  L.  Ed.  1156;  Irvine  v.  The  Hesper,  122  U.  S.  256,  7  Sup.  Ct.  Rep.  1177,  30  L. 
Ed.  1175;  Munson  S.  S.  Line  v.  Miramar  S.  S.  Co.,  Limited,  167  Fed.  960. 

3  The  Maria  Martin  v.  Northern  Transportation  Co.  of  Ohio,  12  Wall.  40,  20 
L.  Ed.  251. 

s  Part  of  R.  S.  §  698,  U.  S.  Comp.  Stat.  1901,  p.  568. 

(95) 


Ch.   VI)  CIRCUIT  COURT   OF  APPEALS  OF   U.   S.  §  39 

"  (2)     All  the  pleadings  with  the  exhibits  annexed  thereto. 

"  (3)     All  the  testimony  and  other  proof  adduced  in  the  cause. 

"  (4)  The  interlocutory  decree  and  any  order  of  the  court  which  appellant, 
may  desire  to  have  reviewed  on  the  appeal. 

"  (5)  Any  report  of  a  commissioner  or  commissioners,  to  which  exception 
may  have  been  taken,  with  the  order  or  orders  of  the  court  respecting  the  same, 
and  the  exceptions  to  the  report,  and  so  much  of  the  testimony  taken  in  the 
proceeding  as  may  be  necessary  to  a  review  of  the  exceptions. 

"  (G)  All  opinions  of  the  court,  whether  upon  interlocutory  questions  or 
finally  deciding  the  cause. 

"  (7)     The  final  decree,  and  the  notice  of  appeal;  and 

"  (8)     The  assignments  of  error. 

"Section  2.  All  other  papers  shall  be  omitted  unless  otherwise  ordered  by  the 
judge  who  heard  the  cause. 

"Section  3.  Where  the  appellant  shall  appeal  specially  and  seek  only  to 
review  one  or  more  questions  involved  in  the  cause,  the  apostles  may,  by  stipula- 
tion between  the  proctors  for  the  respective  parties,  contain  only  such  papers 
and  proceedings  and  evidence  as  are  necessary  to  review  the  questions  raised 
by  the  appeal."1 

On  March  13,  1917,  the  following  rule  amending  Rule  16  was 
adopted  by  the  Circuit  Court  of  Appeals  for  the  Second  Circuit. 

"1.  It  shall  be  the  duty  of  the  plaintiff  in  error  or  appellant  to  docket  the  case 
and  file  the  record  thereof  with  the  clerk  of  this  court  by  or  before  the  return  day, 
whether  in  vacation  or  in  term  time.  But  for  good  cause  shown  the  justice  or 
any  district  judge  within  the  district  or  any  judge  of  this  court  may  enlarge  the 
time  upon  four  days'  notice  of  the  application  served  before  its  expiration  on 
the  attorney  for  the  opposite  party,  the  order  of  enlargement  to  be  filed  with  the 
clerk  of  the  District  Court  and  to  be  transmitted  by  him  to  this  court  with  the 
transcript  of  record.  If  the  plaintiff  in  error  or  appellant  shall  fail  to  comply 
with  this  rule,  the  defendant  in  error  or  appellee  may  have  the  cause  docketed 
and  dismissed  upon  producing  a  certificate,  whether  in  term  time  or  vacation, 
from  the  clerk  of  the  court  wherein  the  judgment  or  decree  was  rendered,  stating 
the  case  and  certifying  that  such  writ  of  error  or  appeal  has  been  duly  sued  out  or 
allowed.  And  in  no  case  shall  the  plaintiff  in  error  or  appellant  be  entitled  to 
docket  the  case  and  file  the  record  after  the  same  shall  have  been  docketed  and 
dismissed  under  this  rule,  unless  by  order  of  the  court. 

"2.  But  the  defendant  in  error  or  appellee  may,  at  his  option,  docket  the 
case  and  file  a  copy  of  the  record  with  the  clerk  of  this  court;  and  if  the  case  is 
docketed  and  a  copy  of  the  record  filed  with  the  clerk  of  this  court  by  the  plaintiff 
in  error  or  appellant  within  the  period  of  time  above  limited  and  prescribed  by 


1  This  rule  seems  to  correspond  with  the  rules  generally  prevailing  in  the  different 
circuit  courts  of  appeal. 

(96) 


Ch.  VI)  CIRCUIT  COURT  OF  APPEALS  OF   U.   S.  §§  40-44 

this  rule,  or  by  the  defendant  in  error  or  appellee  at  any  time  thereafter,  the 
case  shall  stand  for  argument  at  the  term. 

"3.  Upon  the  filing  of  the  transcript  of  a  record  brought  up  by  a  writ  of  error 
or  appeal  the  appearance  of  the  counsel  for  the  party  docketing  the  case  shall  be 
entered." 

§  40.  One  record  when  both  sides  appeal. 

Where  appeal  is  duly  taken  by  both  parties  a  transcript  of  the 
record  filed  in  the  Supreme  Court  by  either  appellant  may  be  used 
on  both  appeals,  and  both  shall  be  heard  thereon  in  the  same 
manner  as  if  records  had  been  filed  by  the  appellants  in  both  cases. x 
§  41.  Contents  of  record. 

"  The  record  in  cases  of  admiralty  and  maritime  jurisdiction,  when  under  the 
requirements  of  law  the  facts  have  been  found  in  the  court  below,  and  the  power 
of  review  is  limited  to  the  determination  of  questions  of  law  arising  on  the  record, 
shall  be  confined  to  the  pleadings,  the  findings  of  fact,  and  conclusions  of  law 
thereon,  the  bills  of  exceptions,  the  final  judgment  or  decree,  and  such  inter- 
locutory orders  and  decrees  as  may  be  necessary  to  a  proper  review  of  the  case." a 

§  42.  Objections  to  evidence — how  availed  of. 

"  In  all  cases  of  equity  or  admiralty  jurisdiction,  heard  in  this  court,  no  objec- 
tion shall  be  allowed  to  be  taken  to  the  admissibility  of  any  deposition,  deed, 
grant,  exhibit,  or  translation,  found  in  the  record  as  evidence,  unless  objection 
was  taken  thereto  in  the  court  below  and  entered  of  record;  but  the  same  shall 
otherwise  be  deemed  to  have  been  admitted  by  consent."3 

§  43.  Stipulating  the  record. 

"When  the  appellant  shall  appeal  specially  and  seek  only  to  review  one  or 
more  questions  involved  in  the  cause,  the  apostles  may,  by  stipulation  between 
the  proctors  for  the  respective  parties,  contain  only  such  papers  and  proceedings 
and  evidence  as  are  necessary  to  review  the  questions  raised  by  the  appeal. "< 

§  44.  Filing  record — time  limit. 

"The  appellants  shall,  within  thirty  days  after  giving  notice  of  appeal,  pro- 
cure to  be  filed  in  this  court  the  apostles  certified  by  the  clerk  of  the  district 
court,  or,  in  case  of  a  special  appeal,  the  stipulated  record,  with  the  certification 
by  the  said  clerk  of  all  papers  contained  therein  on  file  in  his  office.  "s 


1  R.  S.  §  1013,  U.  S.  Comp.  Stat.  1901,  p.  716.     ■  Rule  8  U.  S.  Supreme  Court. 
3  General  Rule  12,  2nd  Circuit.  "  §  3  of  Admiralty  Rule  4, 2nd  Circuit, 

s  Admiralty  Rule  5,  2nd  Circuit. 

(97) 


Ch.  VI)  CIRCUIT  COURT  OF  APPEALS  OF   U.   S.  §§  45-48 

§  45.  Mandamus  may  be  awarded. 

"A  mandamus  may,  in  like  manner  (i.e.,  in  the  circuit  court  of  appeals  on 
motion  of  an  appellant),  be  obtained,  to  compel  a  return  of  the  apostles  when 
unreasonably  delayed  by  the  clerk  or  court  below."1 

§  46.  Docketing. 

"  Each  case  shall  be  placed  on  the  docket  as  soon  as  the  printing  of  the  apostles 
is  completed  by  the  clerk."2 

§  47.  New  pleadings. 

"If  new  pleadings  are  filed  or  testimony  taken  in  this  court,  the  same  shall 
also  be  printed  and  furnished  by  the  clerk  as  in  the  23d  general  rule  provided."3 

§  48.  New  proof  on  appeal. 

"Upon  sufficient  cause  shown,  this  court,  or  any  judge  thereof,  may  allow 
either  appellant  or  appellee  to  make  new  allegations,  or  pray  different  relief, 
or  interpose  a  new  defense,  or  take  new  proofs.  Application  for  such  leave  must 
be  made  within  fifteen  days  after  the  filing  of  the  apostles,  and  upon  at  least 
four  days'  notice  to  the  adverse  party.  "•» 

"  If  leave  be  granted  to  make  new  allegations,  pray  different  relief,  or  inter- 
pose a  new  defense,  the  moving  party  shall,  within  ten  days  thereafter,  serve 
such  new  pleading,  duly  verified,  on  the  adverse  party,  who  shall,  if  such  plead- 
ing be  a  libel,  within  twenty  days  answer  on  oath. 

"  If  leave  be  given  to  take  new  testimony,  the  same  may  be  taken  and  filed 
within  thirty  days  after  the  entry  of  the  order  granting  such  leave,  and  the 
adverse  party  may  take  and  file  counter  testimony  within  twenty  days  after 
such  filing.  "4 

"  Such  testimony  shall  be  taken  by  deposition  before  any  United  States  com- 
missioner or  notary  public,  upon  reasonable  notice  in  writing  given  to  the 
opposite  party;  or  by  commission  issued  out  of  this  court,  with  interrogatories 
annexed.  Upon  proper  cause  shown,  the  court  may  grant  an  open  commission."5 

1.  In  all  cases  where  further  proof  is  ordered  by  the  court,  the  depositions 
which  may  be  taken  shall  be  by  a  commission,  to  be  issued  from  this  court,  or 
from  any  district  court  of  the  United  States. 

2.  In  all  cases  of  admiralty  and  maritime  jurisdiction,  where  new  evidence 
shall  be  admissible  in  this  court,  the  evidence  by  testimony  of  witnesses  shall  be 


1  Admiralty  Rule  13,  2nd  Circuit.  3  Admiralty  Rule  10  (C.  C.  A.  2nd  Cir.) 

9  Admiralty  Rule  15  (C.  C.  A.  2nd  Cir.)    *  Admiralty  Rule  7  (C.  C.  A.  2nd  Cir.) 
s  Admiralty  Rule  9  (C.  C.  A.  2nd  Cir.) 

(98) 


Ch.  VI)  CIRCUIT   COURT   OF   APPEALS   OF   U.    S.  §§  49~51 

taken  under  a  commission  to  be  issued  from  this  court,  or  from  any  district 
court  of  the  United  States,  under  the  direction  of  any  judge  thereof;  and  no 
such  commission  shall  issue  but  upon  interrogatories,  to  be  filed  by  the  party 
applying  for  the  commission,  and  notice  to  the  opposite  party  or  his  agent  or 
attorney,  accompanied  with  a  copy  of  the  interrogatories  so  filed,  to  file  cross- 
interrogatories  within  twenty  days  from  the  service  of  such  notice:  Provided, 
however,  That  nothing  in  this  rule  shall  prevent  any  party  from  giving  oral 
testimony  in  open  court  in  cases  where  by  law  it  is  admissible."1 

§  49.  Hearing  on  appeal— notice  limiting  questions. 

"  The  appeal  shall  be  heard  on  the  pleadings  and  evidence  in  the  district  court, 
unless  the  appellate  court,  on  motion,  otherwise  order. 2  The  appellant  may 
also,  at  his  option,  state  in  his  notice  of  appeal  that  he  desires  only  to  review 
one  or  more  questions  involved  in  the  cause,  which  questions  must  be  clearly 
and  succinctly  stated;  and  he  shall  be  concluded  in  this  behalf  by  such  notice, 
and  the  review  upon  such  an  appeal  shall  be  limited  to  such  question  or 
questions."5 

§  50.  Tucker  Act,  now  Paragraph  20  of  Section  24,  Federal 
Judicial  Code. 

The  District  Court  of  the  United  States  has  jurisdiction 
over  the  subject-matter  within  the  class  of  cases  mentioned  in 
Paragraph  20  of  Section  24,  Federal  Judicial  Code,  concurrently 
with  the  Court  of  Claims,  its  judgments  are  but  reviewable  only 
in  the  United  States  Supreme  Court. 4 

§  51.  Jurisdiction  of  the  U.  S.  Court  of  Appeals  on  Appeal 
from  Interlocutory  Orders  Awarding  Injunctions 
and  Receiverships.  Jurisdiction  of  the  Court  of 
Appeals. 

"Where  upon  a  hearing  in  equity  in  a  district  court,  or  by  a  judge  thereof  in 
vacation,  an  injunction  shall  be  granted,  continued,  refused,  or  dissolved  by  an 
interlocutory  order  or  decree,  or  an  application  to  dissolve  an  injunction  shall  be 


1  Rule  12,  U.  S.  Supreme  Court  Rules. 

"  Rule  1  (C.  C.  A.  2nd  Cir.) 

3  Rule  3  of  Admiralty  Rules  (C.  C.  A.  2nd  Cir.) 

<U.  S.  v.  Dilcour  203  U.  S.  408,  27  Sup.  Ct.  Rep.  58,  51  L.  ed.  248;  Twedee 
Trading  Co.  v.  United  States,  decided  by  Circuit  Court  of  Appeals,  Second  District, 
April  17,  1917,  dismissing  appeal  for  want  of  jurisdiction  without  opinion. 

(99) 


Ch.  VI)  CIRCUIT   COURT   OF   APPEALS   OF   U.    S.  §§  52~55 

refused,  or  an  interlocutory  order  or  decree  shall  be  made  appointing  a  receiver, 
an  appeal  may  be  taken  from  such  interlocutory  order  or  decree  granting,  con- 
tinuing, refusing,  dissolving,  or  refusing  to  dissolve,  an  injunction,  or  appointing 
a  receiver,  to  the  circuit  court  of  appeals,  notwithstanding  an  appeal  in  such 
case  might,  upon  final  decree  under  the  statutes  regulating  the  same,  be  taken 
directly  to  the  Supreme  Court:  Provided,  That  the  appeal  must  be  taken  within 
thirty  days  from  the  entry  of  such  order  or  decree,  and  it  shall  take  precedence 
in  the  appellate  court ;  and  the  proceedings  in  other  respects  in  the  courts  below 
shall  not  be  stayed  unless  otherwise  ordered  by  that  court,  or  a  judge  thereof, 
during  the  pendency  of  such  an  appeal:  Provided,  however,  that  the  court 
below  may,  in  its  discretion,  require  as  a  condition  of  the  appeal  an  additional 
bond." 

Sec.  129,  Federal  Judicial  Code. 

§  52.  Equity  Rule  LXXIV.   Continuing  injunction  pending  appeal. 
Rule  LXXIV.  promulgated  by  the  Supreme  Court  of  the 
United  States,  in  effect  February  1,  1913,  provides: 

"When  an  appeal  from  a  final  decree,  in  an  equity  suit,  granting  or  dissolving 
an  injunction,  is  allowed  by  a  justice  or  a  judge  who  took  part  in  the  decision  of 
the  cause,  he  may,  in  his  discretion,  at  the  time  of  such  allowance,  make  an  order 
suspending,  modifying,  or  restoring  the  injunction  during  the  pendency  of  the 
appeal,  upon  such  terms,  as  to  bond  or  otherwise,  as  he  may  consider  proper  for 
the  security  of  the  rights  of  the  opposite  party. " 

§  53.  Supersedeas  bond  not  sufficient  to  suspend  or  continue 
injunction. 

A  supersedeas  bond  given  under  the  statute  does  not  of  itself 
suspend  the  operation  of  an  injunction  or  continue  it  in  force 
pending  the  appeal.    To  do  so,  a  special  order  of  Court  is  neces- 
sary under  the  rule. x 
§  54.  Effect  of  appeal  on  pending  cause. 

Lower  court  retains  control. 2 
§  55.  Scope  of  appeal  limited  to  injunction. 

Appeals  from  orders  or  decrees  not  final  are  limited  by  statute 
to  orders  or  decrees  granting,  continuing,  refusing,  dissolving,  or 
refusing  to  dissolve  interlocutory  injunctions.3 

1  Hovey  v.  McDonald,  109  U.  S.  150, 3  Sup.  Ct.  Rep.  136,  27  L.  Ed.  888. 
a  Foote  v.  Parsons  Non-Skid  Co.,  Ltd.  196  Fed.  951,  954. 

3  Sections  128  and  129  Judicial  Code;  Both  well  v.  Fitzgerald,  219  Fed.  408,  414, 
135  C.  C.  A.  212. 

(100) 


Ch.  VI)  CIRCUIT   COURT   OF   APPEALS   OF   U.    S.  §  55 

When  other  provisions,  such  as  referring  the  cause  to  a  special 
master  to  ascertain  damages,  etc.,  are  included  in  the  interlocu- 
tory decree  granting  an  injunction,  the  appellate  tribunal  will 
confine  its  review  to  the  propriety  of  the  granting  or  dissolving 
of  the  injunction,  and  the  case  remains  wholly  in  the  control  of 
the  court  below  as  to  all  other  subjects. r 

An  order  refusing  a  stay  of  proceedings,  made  in  a  case  other 
than  that  in  which  the  stay  is  operative,  amounts  to  a  denial  of  an 
injunction,  under  the  section  invoked,  but  an  order  refusing  a 
stay,  made  in  the  case  in  which  the  desired  stay  would  operate, 
would  not  amount  to  such  denial  of  injunction.2 

An  order  refusing  to  dissolve  a  temporary  restraining  order  is 
not  appealable  under  Section  129  of  the  Judicial  Code  as  the  order 
is  made  only  pending  the  hearing  of  a  motion  for  a  temporary 
injunction,  and  its  life  ceases  with  the  disposition  of  that 
motion. 3 

A  restraining  order  which  is  granted,  or  sustained,  or  denied 
after  a  hearing  of  the  parties,  and  which,  in  effect  and  in  every- 
thing but  name,  is  a  temporary  injunction,  falls  within  the  evident 
meaning  of  the  statute,  and  is  reviewable  by  appeal. 4 

Where  the  court  of  original  jurisdiction  has  not  departed  from 
the  rules  and  principles  of  equity  established  for  its  guidance,  but 
has  exercised  sound  judicial  discretion,  its  orders  granting  or 
dissolving  an  interlocutory  injunction  may  not  be  reversed;  and 
the  question  is  not  whether  the  appellate  court  would  or  would 
not  make  the  order. 5 

1  A.  D.  Howe  Mach.  Co.  v.  Dayton,  210  Fed.  80,  127  C.  C.  A.  351;  Ex  parte  Na- 
tional Enameling  Co.,  201  U.  S.  156, 26  Sup.  Ct.  Rep.  404,  50  L.  Ed.  707;  Foote  v. 
Parsons  Non-Skid  Co.,  [Ltd.,  196  Fed.  951,  954;  Kilmer  Mfg.  Co.  v.  Griswold,  67 
Fed.  1017  (C.  C.  A.);  Metallic  Extraction  Co.  v.  Brown,  104  Fed.  345,  43  C.  C.  A. 
568. 

"Griesen  v.  Mutual  L.  I.  Co.,  C.  C.  A.  8th  Cir.,  165  Fed.  48,  50,  91  C.  C.  A.  86; 
Emery  v.  Central  T.  &  S.  D.  Co.,  204  Fed.  965,  968,  123  C.  C.  A.  287. 

s  Pack  v.  Carter,  223  Fed.  638,  640,  139  C.  C.  A.  184. 

4  Western  U.  T.  Co.  v.  U.  S.  &  M.  T.  Co.,  221  Fed.  545,  553. 

s  American  S.  S.  Co.  v.  Twin  City  S.  Co.,  202  Fed.  202, 206. 

(101) 


Ch.  VI)  CIRCUIT  COURT   OF   APPEALS  OF   U.   S.  §   56 

There  must  be  an  abuse  of  the  privilege  and  failure  to  exercise 
judicial  discretion  by  the  court  of  original  jurisdiction,  which  will 
justify  a  reversal. x 

But  when  the  facts  show  that  the  court  in  making  the  order 
has  abused  its  discretion,  the  Appellate  Court  may  review  the 
order.2 
§  56.  When  injunction  dissolved,  scope  broadened. 

The  rule  that  the  granting  or  refusing  of  a  preliminary  injunc- 
tion ordinarily  rests  in  the  sound  discretion  of  the  trial  court, 
and  a  review  thereof  by  an  appellate  court  is  limited  to  the 
inquiry  whether  there  was  an  abuse  of  discretion  in  granting 
the  writ,  is  based  largely  upon  the  consideration  that  the 
object  and  purpose  of  the  preliminary  injunction  is  to  pre- 
serve the  existing  state  of  things  until  the  rights  of  the 
parties  can  be  fairly  and  fully  investigated  and  determined 
upon  strictly  legal  proofs  according  to  the  course  and  prin- 
ciples of  equity.  But  no  such  consideration  obtains  where 
the  trial  court  dissolves  a  preliminary  injunction.  The  grant- 
ing of  an  injunction  to  preserve  the  status  quo  may  be  a  sub- 
stantial and  persuasive  reason  for  continuing  it  in  force.  It 
follows  that,  when  a  preliminary  injunction  has  been  dissolved, 
the  appellate  court  will  not  be  limited  to  the  question  whether 
the  trial  court  has  abused  its  discretion  in  dissolving  the  injunc- 
tion, but  may  inquire  into  all  of  the  circumstances  connected 
with  the  proceedings  as  they  appear  of  record,  and  the  effect 
the  dissolution  of  the  injunction  may  have  on  the  rights  of 
the  parties.3 


1  Boyce  v.  Stewart-Warner  S.  Co.,  220  Fed.  118,  121;  Kansas  City,  Mo.  v.  Sani- 
tary S.  F.  Mch.  Co.,  224  Fed.  964,  966;  Stokes  v.  Williams,  226  Fed.  148, 156;  Ma- 
gruder  v.  Belle  Ass'n,  219  Fed.  72,  82. 

2  Folk  v.  United  States,  233  Fed.  177. 

s  Folk  v.  United  States,  233  Fed.  177,  C.  C.  A.;  Bothwell  v.  Fitzgerald,  219  Fed. 
414, 135  C.  C.  A.  212;  In  re  Pindel,  221  Fed.  342;  Kings  County  Raisin  &  Fruit  Co.  v. 
United  States  Con.  Seeded  Raisin  Co.,  182  Fed.  59;  Blount  v.  Societe"  Anonyme  du 
Filtre  Chamberland  Systeme  Pasteur,  53  Fed.  98. 

(102) 


Ch.  VI)  CIRCUIT  COURT  OF  APPEALS  OF  U.   S.  §  57 

§  57.  Enjoining  proceedings  in  State  courts. 

(a)  A  court  of  the  United  States  cannot  enjoin  proceedings 
in  a  State  court,  except  in  proceedings  in  bankruptcy,  under 
§  720  of  U.  S.  Revised  Statutes. J 

(b)  This  rule  does  not  apply,  however,  when  a  suit  com- 
menced in  a  State  court  has  been  legally  removed  to  the  Federal 
court;  the  latter  then  may,  when  necessary  to  protect  its  own 
jurisdiction  or  render  effective  its  decrees,  enjoin  further  pro- 
ceedings in  the  State  court. 2 

(c)  Nor  is  there  any  doubt  of  the  authority  of  a  court  of  the 
United  States  to  grant  an  injunction  to  stay  proceedings  in  a 
State  court  to  protect  its  own  jurisdiction.3 

(d)  The  general  principle  is  that  it  is  not  for  the  Federal 
courts  to  stop  State  officers  from  performing  their  statutory 
duty  for  fear  that  they  should  perform  it  wrongly. 4 

Especially  is  this  true  in  the  matter  of  collecting  taxes  and 
license  fees. s 

(e)  Proceedings  in  the  Federal  courts  to  enjoin  rates  estab- 
lished by  a  State  which  are  confiscatory  are  not  embraced  within 
Sect.  720  of  the  Revised  Statutes  of  the  U.  S.6 

1  In  re  Chetwood,  165  U.  S.  443,  17  Sup.  Ct.  Rep.  385,  41  L.  Ed.  782;  Central 
National  Bank  v.  Stevens,  169  U.  S.  432,  18  Sup.  Ct.  Rep.  403, 42  L.  Ed.  807;  Moran 
v.  Sturges,  154  U.  S.  256,  14  Sup.  Ct.  Rep.  1019, 38  L.  Ed.  981 ;  Guaranty  Trust  Co. 
v.  North  Chi.  St.  R.  R.  Co.,  et  al.,  130  Fed.  801;  Oliver  v.  Orendorf  Co.,  105  Fed. 
272;  Dial  v.  Reynolds,  96  U.  S.  340,  24  L.  Ed.  644;  Haines  v.  Carpenter,  91  U.  S. 
254,  23  L.  Ed.  345;  Watson  v.  Jones,  13  Wall.  679,  20  L.  Ed.  666;  Diggs  and  Keith 
v.  Wolcott,  8  U.  S.  (4  Cranch)  179,  2  L.  Ed.  587;  McKinrv.  Voorhies,  7  Cranch  279, 
3  L.  Ed.  342. 

2  Pacific  Live  Stock  Co.  v.  Lewis,  217  Fed.  97;  Dietzsch  v.  Huidekoper,  103  U.  S. 
494,  26  L.  Ed.  497;  French  v.  Hay,  22  Wall.  250,  22  L.  Ed.  857;  Wagner  v.  Drake 
(D.  C),  31  Fed.  849;  Abeel  v.  Culberson  (C.  C),  56  Fed.  329. 

3  Central  Trust  Co.  v.Western  N.  C.  Co.  (C.  C),  112  Fed.  471;  Pacific  Live  Stock 
Co.  v.  Lewis,  217  Fed.  97. 

4  First  Natl.  Bank  v.  Albright,  208  U.  S.  548,  553,  52  L.  Ed.  614,  616,  28  Sup.  Ct. 
Rep.  349. 

s  Boise"  Artesian  Hot  &  Cold  Water  Co.  v.  Boise*  City,  213  U.  S.  276,  53  L.  Ed. 
796,  29  Sup.  Ct.  Rep.  426. 

6  Atlantic  Coast  Line  v.  Prentiss,  211  U.  S.  210,  239,  29  Sup.  Ct.  Rep.  67,  53  L. 
Ed.  150,  164. 

(103) 


Ch.  VI)  CIRCUIT  COURT  OF  APPEALS  OF   U.    S.  §§  58~59 

(f)  But  the  United  States  Courts,  by  virtue  of  their  general 
equity  powers,  have  jurisdiction  to  enjoin  the  enforcement  of  a 
void  judgment  of  a  State  court  or  one  obtained  by  fraud  or  lack 
of  jurisdiction.1 

Such  judgments  are  not  erroneous  and  not  voidable,  but, 
upon  principles  of  natural  justice,  and  under  the  due  process 
clause  of  the  Fourteenth  Amendment,  are  absolutely  void.  They 
constitute  no  justification  to  a  plaintiff  who,  if  concerned  in  exe- 
cuting such  judgments,  is  considered  in  law  as  a  mere  trespasser. 2 
§  58.  Federal  Trade  Commission.  Jurisdiction  of  the  Court  of 
Appeals. 

The  act  creates  a  Federal  Trade  Commission  consisting  of  five 
members  with  a  principal  office  in  the  City  of  Washington,  but 
the  commission  may  meet  and  exercise  all  its  powers  at  any  other 
place.  The  commission  may,  by  one  or  more  of  its  members,  or 
by  such  examiners  as  it  may  designate,  prosecute  any  inquiry 
necessary  to  its  duties  in  any  part  of  the  United  States. 3 
§  59.  Powers  of  the  Commission. 

Section  5  of  the  Act  provides : 

"  That  unfair  methods  of  competition  in  commerce  are  hereby 
declared  unlawful. 

"The  commission  is  hereby  empowered  and  directed  to  pre- 
vent persons,  partnerships,  or  corporations,  except  banks,  and 
common  carriers  subject  to  the  Acts  to  regulate  commerce,  from 
using  unfair  methods  of  competition  in  commerce.  .  .  ."4 


1  Simon  v.  Southern  Railway  Company,  236  U.  S.  115,  132, 35  Sup.  Ct.  Rep.  255, 
59  L.  Ed.  492;  Hyde  v.  Stone,  20  How.  175,  15  L.  Ed.  875;  Reagan  v.  Farmers'  Loan 
&  T.  Co.,  154  U.  S.  391,  38  L.  Ed.  1021,  4  Inters.  Com.  Rep.  5G0,  14  Sup.  Ct.  Rep. 
1047;  Payne  v.  Hook,  7  Wall.  429, 19  L.  Ed.  261. 

2  Harris  v.  Hardeman,  14  How.  339,  14  L.  Ed.  446  (default  judgment  entered  on 
improper  service) ;  Williamson  v.  Berry,  8  How.  541, 12  L.  Ed.  1189;  Scott  v.  McNeal, 
154  U.  S.  46,  38  L.  Ed.  901,  14  Sup.  Ct.  Rep.  1108;  Western  Life  Indemnity  Co.  v. 
Rupp,  235  U.  S.  273,  35  Sup.  Ct.  Rep.  51,  59  L.  Ed.  210;  Simon  v.  Southern  Ry. 
Co.,  236  IT.  S.  115,  132,  35  Sup.  Ct.  Rep.  255,  59  L.  Ed.  492. 

3  Act  of  Sept.  26,  1914,  Ch.  311;  38  Stat.  L.  717,  718. 

4  38  Stat.  L.  719. 

(104) 


Ch.  VI)  CIRCUIT  COURT   OF  APPEALS  OF   U.    S.  §  60 

§  60.  Procedure  before  Commission  and  U.  S.  Court  of  Appeals. 

The  act  further  provides : 

"Whenever  the  commission  shall  have  reason  to  believe  that  any  such  person, 
partnership,  or  corporation  has  been  or  is  using  any  unfair  method  of  competition 
in  commerce,  and  if  it  shall  appear  to  the  commission  that  a  proceeding  by  it  in 
respect  thereof  would  be  to  the  interest  of  the  public,  it  shall  issue  and  serve 
upon  such  person,  partnership,  or  corporation  a  complaint  stating  its  charges 
in  that  respect,  and  containing  a  notice  of  a  hearing  upon  a  day  and  at  a  place 
therein  fixed  at  least  thirty  days  after  the  service  of  said  complaint.  The  person, 
partnership,  or  corporation  so  complained  of  shall  have  the  right  to  appear  at 
the  place  and  time  so  fixed  and  show  cause  why  an  order  should  not  be  entered 
by  the  commission  requiring  such  person,  partnership,  or  corporation  to  cease 
and  desist  from  the  violation  of  the  law  so  charged  in  said  complaint.  Any 
person,  partnership,  or  corporation  may  make  application,  and  upon  good  cause 
shown  may  be  allowed  by  the  commission  to  intervene  and  appear  in  said 
proceeding  by  counsel  or  in  person.  The  testimony  in  any  such  proceeding  shall 
be  reduced  to  writing  and  filed  in  the  office  of  the  commission.  If  upon  such 
hearing  the  commission  shall  be  of  the  opinion  that  the  method  of  competition 
in  question  is  prohibited  by  this  Act,  it  shall  make  a  report  in  writing  in  which  it 
shall  state  its  findings  as  to  the  facts,  and  shall  issue  and  cause  to  be  served  on 
such  person,  partnership,  or  corporation  an  order  requiring  such  person,  part- 
nership, or  corporation  to  cease  and  desist  from  using  such  method  of  competi- 
tion. Until  a  transcript  of  the  record  in  such  hearing  shall  have  been  filed  in  a 
circuit  court  of  appeals  of  the  United  States,  as  hereinafter  provided,  the  com- 
mission may  at  any  time,  upon  such  notice  and  in  such  manner  as  it  shall  deem 
proper,  modify  or  set  aside,  in  whole  or  in  part,  any  report  or  any  order  made  or 
issued  by  it  under  this  section. 

"  If  such  person,  partnership,  or  corporation  fails  or  neglects  to  obey  such 
order  of  the  commission  while  the  same  is  in  effect,  the  commission  may  apply 
to  the  circuit  court  of  appeals  of  the  United  States,  within  any  circuit  where  the 
method  of  competition  in  question  was  used  or  where  such  person,  partnership, 
or  corporation  resides  or  carries  on  business,  for  the  enforcement  of  its  order, 
and  shall  certify  and  file  with  its  application  a  transcript  of  the  entire  record  in 
the  proceeding,  including  all  the  testimony  taken  and  the  report  and  order  of 
the  commission.  Upon  such  filing  of  the  application  and  transcript  the  court 
shall  cause  notice  thereof  to  be  served  upon  such  person,  partnership,  or  corpora- 
tion and  thereupon,  shall  have  jurisdiction  of  the  proceeding  and  of  the 
question  determined  therein,  and  shall  have  power  to  make  and  enter  upon  the 
pleadings,  testimony,  and  proceedings  set  forth  in  such  transcript  a  decree 
affirming,  modifying,  or  setting  aside  the  order  of  the  commission.  The 
findings  of  the  commission  as  to  the  facts,  if  supported  by  testimony,  shall  be 
conclusive.  .  .  ." r 


*  Act  of  Sept.  26,  1914,  Ch.  311,  §  5;  38  Stat.  L.  719. 

(105) 


Ch.  VI)  CIRCUIT  COURT  OF  APPEALS  OF  U.   S.  §§  61-62 

§  61.  Further  proof. 

"  If  either  party  shall  apply  to  the  court  for  leave  to  adduce  additional 
evidence,  and  shall  show  to  the  satisfaction  of  the  court  that  such  additional 
evidence  is  material  and  that  there  were  reasonable  grounds  for  the  failure  to 
adduce  such  evidence  in  the  proceeding  before  the  commission,  the  court  may 
order  such  additional  evidence  to  be  taken  before  the  commission  and  to  be 
adduced  upon  the  hearing  in  such  manner  and  upon  such  terms  and  conditions 
as  to  the  court  may  seem  proper.  The  commission  may  modify  its  findings 
as  to  the  facts,  or  make  new  findings,  by  reason  of  the  additional  evidence  so 
taken,  and  it  shall  file  such  modified  or  new  findings,  which,  if  supported  by 
testimony,  shall  be  conclusive,  and  its  recommendation,  if  any,  for  the  modifica- 
tion or  setting  aside  of  its  original  order,  with  the  return  of  such  additional 
evidence.  The  judgment  and  decree  of  the  court  shall  be  final,  except  that 
the  same  shall  be  subject  to  review  by  the  Supreme  Court  upon  certiorari  as 
provided  in  section  two  hundred  and  forty  of  the  Judicial  Code. 

"  Any  party  required  by  such  order  of  the  commission  to  cease  and  desist  from 
using  such  method  of  competition  may  obtain  a  review  of  such  order  in  said 
circuit  court  of  appeals  by  filing  in  the  court  a  written  petition  praying  that  the 
order  of  the  commission  be  set  aside.  A  copy  of  such  petition  shall  be  forthwith 
served  upon  the  commission,  and  thereupon  the  commission  forthwith  shall 
certify  and  file  in  the  court  a  transcript  of  the  record  as  hereinbefore  provided. 
Upon  the  filing  of  the  transcript  the  court  shall  have  the  same  jurisdiction  to 
affirm,  set  aside,  or  modify  the  order  of  the  commission  as  in  the  case  of  an 
application  by  the  commission  for  the  enforcement  of  its  order,  and  the  findings 
of  the  commission  as  to  the  facts,  if  supported  by  testimony,  shall  in  like  manner 
be  conclusive. 

"  The  jurisdiction  of  the  circuit  court  of  appeals  of  the  United  States  to 
enforce,  set  aside,  or  modify  orders  of  the  commission  shall  be  exclusive. 

"  Such  proceedings  in  the  circuit  court  of  appeals  shall  be  given  precedence 
over  other  cases  pending  therein,  and  shall  be  in  every  way  expedited.  No  order 
of  the  commission  or  judgment  of  the  court  to  enforce  the  same  shall  in  any  wise 
relieve  or  absolve  any  person,  partnership,  or  corporation  from  any  liability 
under  the  antitrust  acts.  .  .  ."  * 

§  62.  Service  of  process. 

"  Complaints,  orders,  and  other  processes  of  the  commission  under  this  section 
may  be  served  by  any  one  duly  authorized  by  the  commission,  either  (a)  by 
delivering  a  copy  thereof  to  the  person  to  be  served,  or  to  a  member  of  the 
partnership  to  be  served,  or  to  the  president,  secretary,  or  other  executive  officer 
or  a  director  of  the  corporation  to  be  served;  or  (b)  by  leaving  a  copy  thereof  at 
the  principal  office  or  place  of  business  of  such  person,  partnership,  or  corpora- 
tion; or  (c)  by  registering  and  mailing  a  copy  thereof  addressed  to  such  person, 


'Act  of  Sept.  26,  1914,  Ch.  311,  §  5;  38  Stat.  L.  719. 
(106) 


Ch.  VI)  CIRCUIT  COURT  OF  APPEALS  OF  U.   S.  §  62 

partnership,  or  corporation  at  his  or  its  principal  office  or  place  of  business.  The 
verified  return  by  the  person  so  serving  said  complaint,  order,  or  other  process 
setting  forth  the  manner  of  said  service  shall  be  proof  of  the  same,  and  the  return 
post-office  receipt  for  said  complaint,  order,  or  other  process  registered  and 
mailed  as  aforesaid  shall  be  proof  of  the  service  of  the  same."1 


(107) 


Cll.  VII)  JURISDICTION  OF   SUPREME  COURT  OF  U.   S. 


CHAPTER  VII 

Jurisdiction  of  the  Supreme  Court  of  the  United  States  on 
Appeal  or  Error  from  the  U.  S.  Circuit  Court  of  Appeals 


Sec.  Sec 

1.  From    Circuit    Court    of    Appeals,      19. 

§241    Federal   Judicial  Code. 

2.  Rules  of  Practice.  20. 

(a)  Rule  40  of  U.   S.   Supreme     21. 
Court. 

(b)  Mode  of  reexamination.  22. 

3.  Judgment  must  be  final. 

4.  When  appealable  to  Supreme  Court.      23. 

5.  Amended  bill  may  extend  ground 

of  jurisdiction.  24. 

6.  Corporation    organized    under    Act 

of  Congress.  25. 

7.  No  review  in  admiralty,  contempt,      26. 

or  criminal  causes. 

8.  When   a   party   cannot   have   two     27. 

appeals. 

9.  Scheme  of  appellate  jurisdiction. 

10.  Two  appeals  to  save  remedy — How     28. 

disposed  of. 

11.  Jurisdictional  amount.  29. 

12.  Where  no  jurisdictional  amount  is 

required.  30. 

13.  How  to  show  jurisdictional  amount. 

14.  No  jurisdiction  to  interpret  mandate     31. 

of  Circuit  Court  of  Appeals.  32. 

15.  Upon  reversal  in  Court  of  Appeals, 

case  cannot  after  second  trial  be     33. 
taken  direct  to  Supreme  Court.  34. 

16.  Certified  questions.     §§  239  and  251 

of  Federal  Judicial  Code.  35. 

17.  The     rule     of    court.      Rule    37, 

Supreme  Court.  36. 

18.  Only  specific  questions  to  be  certified. 

(108) 


Specific  propositions  of  law  only 
will  be  considered  and  answered. 

Categorical  answers. 

Questions  in  bankruptcy  may  be 
certified. 

No  certification  after  decision  in 
Circuit  Court  of  Appeals. 

Clerk's  fee  must  be  paid  before 
record  furnished. 

Record  must  be  furnished  on  applica- 
tion. 

Form  of  certificate. 

Jurisdiction  of  the  U.  S.  Supreme 
Court  in  bankruptcy. 

Under  the  new  law  no  appeal  in 
bankruptcy  lies  to  the  Supreme 
Court. 

Prohibition  and  mandamus.  Prohi- 
bition limited  to  admiralty. 

Mandamus  used  in  aid  of  appellate 
jurisdiction. 

Mandamus  allowed  in  absence  of 
appellate  remedy. 

General  use  of  mandamus. 

Mandamus  when  inferior  court  acts 
without  authority. 

Ministerial  duty  exclusively. 

Mandamus  to  compel  reversal  will 
not  lie. 

Judgment  on  mandamus  reviewed 
by  writ  of  error. 

Mandamus  jurisdiction  of  U.  S. 
District    Court. 


Ch.  VII)  JURISDICTION  OF   SUPREME  COURT  OF  U.   S.  §§  1-3 

§  i.  From  Circuit  Court  of  Appeals,  §  241  Federal  Judicial  Code. 

Sec.  241  of  the  Federal  Judicial  Code  is  as  follows: 

"  In  any  case  in  which  the  judgment  or  decree  of  the  Circuit  Court  of  Appeals 
is  not  made  final  by  the  provisions  of  the  Title,  there  shall  be  of  right  an  appeal 
or  writ  of  error  to  the  Supreme  Court  of  the  United  States  where  the  matter  in 
controversy  shall  exceed  one  thousand  dollars,  besides  cost." 

§  2.  Rules  for  practice. 

Rule  40  of  the  U.  S.  Supreme  Court  is  as  follows : 

"(a)  Practice  in  cases  from  Circuit  Court  of  Appeals. 

"  The  provisions  of  these  rules  relating  to  the  practice  on  direct  writs  of  error 
to  and  appeals  from  the  district  courts  shall  also  be  deemed  to  relate  to  and 
cover  the  practice  on  writs  of  error  to  and  appeals  from  the  Circuit  Court  of 
Appeals." 

•"  (b)  Reexaminations  of  final  judgments  or  decrees  of  the  Court  of  Appeals 
are  to  be  on  writ  of  error  or  appeal  in  the  same  manner  and  under  the  same 
regulations  as  in  cases  of  writs  of  error  and  appeals  from  judgments  in  the 
Supreme  Court  of  the  District  of  Columbia."1 

§  3.  Judgment  must  be  final. 

The  judgment  of  the  Circuit  Court  of  Appeals  must  be  final 
in  its  nature  to  entitle  a  party  to  bring  it  for  review  in  the  Supreme 
Court  of  U.  S.  under  this  section  of  the  statute.2  Where  the 
jurisdiction  of  the  Federal  Court  originally  invoked  was  solely 
on  the  ground  of  diversity  of  citizenship,  the  mere  fact  that  con- 
stitutional questions  afterwards  arose  in  the  course  of  the  pro- 
ceedings does  not  justify  an  appeal  from  the  Circuit  Court 
of  Appeals  to  the  Supreme  Court  of  the  U.  S.,  if  the  unsuccess- 
ful party  elected  to  appeal  from  the  District  Court  to  the  U.  S. 
Court  of  Appeals.3 

A  decree  of  the  Circuit  Court  of  Appeals  affirming  a  decree  of 
the  District  Court,  is  final,  unless,  in  addition  to  the  allegations 

1  27  Stat,  at  L.  434,  Chap.  74,  §  8;  Kenaday  v.  Sinnott,  179  U.  S.  606,  21  Sup. 
Ct.  Rep.  233,  45  L.  Ed.  339. 

a  Kerwan  v.  Murphy,  170  U.  S.  205,  18  Sup.  Ct.  Rep.  592,  42  L.  Ed.  1009;  Ger- 
man Natl.  Bank  v.  Specker,  181  U.  S.  405,  21  Sup.  Ct.  Rep.  688,  45  L.  Ed.  926. 

3  Boise"  Artesian  H.  &  C.  Water  Co.  v.  Boise  City,  230  U.  S.  98, 33  Sup.  Ct.  Rep. 
1003,  57  L.  Ed.  1409, 

(109) 


Ch.  VII)  JURISDICTION  OF   SUPREME  COURT  OF  U.   S.  §  4 

of  diverse  citizenship  which  are  contained  in  the  bill,  there  was  an 
averment  of  a  cause  of  action  and  substantial  basis  of  jurisdic- 
tion arising  under  the  Constitution  or  statutes  of  the  United 
States.  * 

An  order  directing  an  officer  of  a  corporation  to  answer  certain 
questions  propounded  by  the  Interstate  Commerce  Commission 
is  final  and  appealable. 2 
§  4.  When  appealable  to  Supreme  Court. 

When  the  jurisdiction  of  the  District  Court  depends  wholly 
upon  diversity  of  citizenship,  the  judgment  of  the  Circuit  Court 
of  Appeals  is  final  and  is  not  appealable  to  the  Supreme  Court  of 
the  United  States. 3  But  where  the  cause  of  action  of  the  plaintiff 
was  predicated  both  upon  diversity  of  citizenship  and  upon  the 
constitution  or  a  statute  of  the  United  States,  and  where  there- 
fore the  jurisdiction  of  the  District  Court  did  not  depend  entirely 
upon  diversity  of  citizenship,  the  judgment  of  the  Circuit  Court 
of  Appeals  is  appealable  and  may  be  reviewed  in  the  Supreme 
Court  of  the  United  States  by  appeal  or  error  according  to  the 
nature  of  the  case,  provided  the  amount  in  controversy  exceeds 
the  sum  of  one  thousand  dollars.4 


«  MacFadden  v.  United  States,  213  U.  S.  2S8,  53  L.  Ed.  801, 29  Sup.Ct.  Rep.  490; 
Shulthis  v.  McDougal,  226  U.  S.  561,  56  L.  Ed.  1205,  32  Sup.  Ct.  Rep.  704. 

3  Ellis  v.  Interstate  Commerce  Commission,  237  U.  S.  434,  35  Sup.  Ct.  Rep.  64, 
59  L.  Ed.  1036. 

3  Delaware  L.  &  W.  Co.  v.  Yurkonis,  238  U.  S.  439,  35  Sup.  Ct.  Rep.  902,  59  L. 
Ed.  1397;  Arbuckle  v.  Blackburn,  191  U.  S.  408, 24  Sup.  Ct.  Rep.  148, 48  L.  Ed.  246. 

4  See  also  Section  241  of  the  Judicial  Code.  G.  &  C.  Merriam  Co.  v.  Syndi- 
cate Pub.  Co.,  237  U.  S.  618,  35  Sup.  Ct.  Rep.  708,  59  L.  Ed.  1148;  Wilson  Cy- 
press Co.  v.  Del.  Pozo  Y  Marcos,  236  U.  S.  635,  657,  35  Sup.  Ct.  Rep.  446,  59  L. 
Ed.  758;  Vicksburg  v.  Henson,  231  U.  S.  259,  58  L.  Ed.  209,  34  Sup.  Ct.  Rep.  95; 
Macfadden  v.  United  States,  213  U.  S.  288,  29  Sup.  Ct.  Rep.  490,  53  L.  Ed.  801; 
Houghton  v.  Burden,  228  U.  S.  161,  33  Sup.  Ct.  Rep.  491,  57  L.  Ed.  180;  Colorado, 
etc.,  M.  Co.  v.  Turck,  150  U.  S.  142,  37  L.  Ed.  1030,  14  Sup.  Ct.  Rep.  35;  Union 
P.  Ry.  v.  Harris,  158  U.  S.  327, 39  L.  Ed.  1003,  15  Sup.  Ct.  Rep.  843;  Florida,  etc., 
Ry.  v.  Bell,  176  U.  S.  321,  44  L.  Ed.  486,  30  Sup.  Ct.  Rep.  399;  Hugueley  Mfg.  Co. 
v.  Galeton  Cotton  Mills,  184  U.  S.  294,  22  Sup.  Ct.  Rep.  452,  46  L.  Ed.  546;  Borg- 
meyer  v.  Idler,  159  U.  S.  413,  40  L.  Ed.  199,  16  Sup.  Ct.  Rep.  34. 

(HO) 


Ch.  VII)  JURISDICTION  OF   SUPREME  COURT  OF  U.   S.  §§  5~7 

§  5.  Amended  bill  may  extend  ground  of  jurisdiction. 

In  the  recent  case  of  Vicksburg  v.  Henson,  231  U.  S.  259, 
58  L.  Ed.  209,  the  Supreme  Court  of  the  United  States  clarified 
the  mooted  question  of  the  jurisdiction  of  the  United  States 
Supreme  Court  on  appeal  from  the  U.  S.  Circuit  Court  of  Appeals, 
using  the  following  language : 

"The  further  contention  is  made  that  the  jurisdiction  of  the  Circuit  Court  of 
Appeals  was  final  because  the  jurisdiction  of  the  District  Court  as  originally 
invoked  depended  solely  upon  diverse  citizenship.  But  it  appears  that  when 
the  amended  and  supplemental  bill  was  filed  there  were  added  to  the  ground 
of  original  jurisdiction  allegations  concerning  the  proper  construction  of  the 
contract  rights  of  the  receiver,  which  attacked  the  proposed  action  of  the  city 
on  the  ground  that  it  would  be  destructive  of  constitutional  rights.  We  think 
those  allegations  brought  into  the  case  a  ground  of  jurisdiction  independent 
of  diversity  of  citizenship.  They  were  grounds  which  existed  before  the  suit 
was  begun,  which  might  have  been  averred  in  the  original  bill,  and  which  were 
brought  into  the  case  by  the  amendment.  We  think,  therefore,  that  the  juris- 
diction of  the  District  Court  did  not  rest  solely  upon  diversity  of  citizenship, 
but  upon  the  additional  ground  of  deprivation  of  Federal  right.  In  this  view 
the  decision  of  the  Circuit  Court  of  Appeals  is  not  final,  and  an  appeal  may  be 
taken  to  this  Court."1 

§  6.  Corporations  organized  under  Act  of  Congress. 

The  decisions  of  the  U.  S.  Circuit  Court  of  Appeals  against  a 
corporation  organized  under  an  act  of  Congress  is  reviewable  in 
the  U.  S.  Supreme  Court. 2 
§  7.  No  review  in  admiralty,  contempt,  or  criminal  causes. 

Decree  of  U.  S.  Circuit  Court  of  Appeals  in  admiralty  is  final.3 

A  judgment  affirming  a  sentence  in  a  contempt  proceeding  is 
final  within  the  above  section  and  can  only  be  reviewed  in  the 
U.  S.  Supreme  Court  by  certiorari.4 

This  is  also  true  of  all  judgments  in  criminal  cases.3 

*  The  Court  cites  Macfadden  v.  United  States,  213  IT.  S.  288,  53  L.  Ed.  801,  29 
Sup.  Ct.  Rep.  490. 

a  Texas  &  P.  R.  Co.  v.  Hill,  237  U.  S.  215,  35  Sup.  Ct.  Rep.  575,  59  L.  Ed.  918. 

3  Oregon  R.  R.  v.  Balfour,  179  U.  S.  56,  21  Sup.  Ct.  Rep.  28,  45  L.  Ed.  82. 

t  Cary  Mfg.  Co.  v.  Acme  Flexible  Clasp  Co.,  187  U.  S.  427,  23  Sup.  Ct.  Rep. 
211, 47  L.  Ed.  244;  O'Neil  v.  U.  S.,  190  U.  S.  36,  23  Sup.  Ct.  Rep.  776, 47  L.  Ed.  945. 

s  Hunt  v.  U.  S.,  166  U.  S.  424,  17  Sup.  Ct.  Rep.  609,  41  L.  Ed.  1063. 

(HI) 


Ch.  VII)  JURISDICTION   OF   SUPREME  COURT  OF  U.   S.  §§  8-11 

§  8.  When  a  party  cannot  have  two  appeals. 

Of  course,  a  party  having  elected  to  go  to  the  U.  S.  Circuit 
Court  of  Appeals  for  a  review  of  the  judgment,  could  not  there- 
after, if  unsuccessful  in  that  court  upon  the  merits,  prosecute  a 
writ  of  error  directly  from  the  District  Court  to  the  U.  S.  Supreme 
Court.1 
§  9.  Scheme  of  appellate  jurisdiction. 

The  intention  of  the  act  in  general  is  that  the  appellate  juris- 
diction should  be  distributed,  and  that  there  should  not  be  two 
appeals,  but,  in  cases  where  the  decisions  of  the  Courts  of  Appeals 
are  not  made  final,  it  is  provided  that  there  shall  be  of  right 
an  appeal  or  writ  of  error  or  review  of  the  case  by  the  U.  S. 
Supreme  Court  where  the  matter  in  controversy  shall  exceed 
one  thousand  dollars. 2 
§  10.  Two  appeals  to  save  remedy — How  disposed  of. 

But  where  a  party  in  order  to  save  his  remedy  appealed  direct 
to  the  U.  S.  Supreme  Court  on  the  question  of  jurisdiction  and 
also  took  another  appeal  to  the  U.  S.  Circuit  Court  of  Appeals, 
it  was  held  that  the  latter  court  has  no  power  to  compel  him  to 
elect  the  court  in  which  he  will  prosecute  his  appeal  to  a  final 
determination,  and  that  upon  the  dismissal  of  the  first  appeal 
by  the  U.  S.  Supreme  Court  for  want  of  jurisdiction,  it  became 
the  duty  of  the  U.  S.  Circuit  Court  of  Appeals  to  hear  and  de- 
termine the  appeal  pending  in  that  court.3 
§11.  Jurisdictional  amount. 

An  appeal  cannot  be  taken  from  the  Circuit  Court  of  Appeals 
to  the  U.  S.  Supreme  Court  with  reference  to  the  discharge  of  a 
bankrupt  by  a  creditor,  as  the  matter  in  controversy  must  have 

1  Spreckles  Sugar  Rcf.  Co.  v.  McClain,  192  U.  S.  397,  418,  24  Sup.  Ct.  Rep.  376, 
48  L.  Ed.  496,  499;  Ayers  v.  Polsdorfer,  187  U.  S.  585, 23  Sup.  Ct.  Rep.  196,  47  L. 
Ed.  314;  Loeb  v.  Columbia  Twp.  Co.,  179  U.  S.  472,  21  Sup.  Ct.  Rep.  174,  45  L. 
Ed.  280;  Robinson  v.  Caldwell,  165  U.  S.  359, 17  Sup.  Ct.  Rep.  343,  41  L.  Ed.  745. 

3  American  Sugar  Ref.  Co.  v.  New  Orleans,  181  U.  S.  277,  283,  21  Sup.  Ct.  Rep. 
646,  45  L.  Ed.  859. 

3  David  Lamar  v.  United  States,  241  U.  S.  105,  36  Sup.  Ct.  Rep.  535, 60  L.  Ed. 
912. 

(112) 


Ch.  VII)  JURISDICTION  OF   SUPREME  COURT   OF   U.    S.  §  12 

actual  value  according  to  the  last  clause  of  §  6  of  the  Judiciary 
Act  of  March  3,  1891,  which  is  to  the  effect  that  the  matter  in 
controversy  shall  exceed  the  one  thousand  dollars,  besides  costs, 
and  the  actual  value  required  cannot  be  supplied  by  speculation 
on  the  possibility  that,  if  a  discharge  were  refused,  something 
might  be  made  out  of  the  bankrupt. x 

Where  the  jurisdictional  amount  of  one  thousand  dollars 
does  not  exist,  the  appeal  will  be  dismissed. 2 
§  12.  Where  no  jurisdictional  amount  is  required. 

"A  writ  of  error  may  be  allowed  to  review  any  final  judgment  at  law,  and  an 
appeal  shall  be  allowed  from  any  final  decree  in  equity  hereinafter  mentioned, 
without  regard  to  the  sum  or  value  in  dispute: 

"  (Patent  and  copyright  cases.)  First.  Any  final  judgment  at  law  or  final 
decree  in  equity  of  any  circuit  court,  or  of  any  district  court  acting  as  a  circuit 
court,  or  of  the  supreme  court  of  the  District  of  Columbia,  or  of  any  Terri- 
tory, in  any  case  touching  patents-rights  or  copyrights. 

"  (Actions  for  enforcement  of  any  revenue  law.)  Second.  Any  final  judgment 
of  a  circuit  court,  or  of  any  district  court  acting  as  a  circuit  court,  in  any  civil 
action  brought  by  the  United  States  for  the  enforcement  of  any  revenue  laws 
thereof. 

"  (Actions  against  revenue  officers.)  Third.  Any  final  judgment  of  a  circuit 
court,  or  of  any  district  court  acting  as  a  circuit  court,  in  any  civil  action  against 
any  officer  of  the  revenue  for  any  act  done  by  him  in  the  performance  of  his 
official  duty,  or  for  the  recovery  of  any  money  exacted  by  or  paid  to  him  which 
shall  have  been  paid  into  the  Treasury. 

"  (Cases  on  account  of  deprivation  of  rights  of  citizens  or  under  the  Constitu- 
tion.) Fourth.  Any  final  judgment  at  law  or  final  decree  in  equity  of  any 
circuit  court,  or  of  any  district  court  acting  as  a  circuit  court,  in  any  case  brought 
on  account  of  the  deprivation  of  any  right,  privilege,  or  immunity  secured  by 
the  Constitution  of  the  United  States,  or  of  any  right  or  privilege  of  a  citizen 
of  the  United  States. 

"  (Suits  for  injuries  by  conspirators  against  civil  rights.)  Fifth.  Any  final 
judgment  of  a  circuit  court,  or  of  any  district  court  acting  as  a  circuit  court, 
in  any  civil  action  brought  by  any  person  on  account  of  injury  to  his  person  or 
property  by  any  act  done  in  furtherance  of  any  conspiracy  mentioned  in  section 
nineteen  hundred  and  eighty."     (U.  S.  Rev.  Statutes  Sec.  699.) 


*  Huntington  v.  Saunders,  163  U.  S.  319,  16  Sup.  Ct.  Rep.  1120,  41  L.  Ed.  174; 
Durham  v.  Seymour,  161  U.  S.  235,  16  Sup.  Ct.  Rep.  452,  40  L.  Ed.  682. 

9  Hugueley  Mfg.  Co.  v.  Galeton  Cotton  Mills,  184  U.  S.  294,  22  Sup.  Ct.  Rep. 
452,  46  L.  Ed.  547. 

8  (113) 


Ch.  VII)  JURISDICTION  OF   SUPREME   COURT   OF   U.    S.  §§  13-16 

This  section  is  applicable  to  the    U.  S.  District  Court  and 
Circuit  Court  of  Appeals. 
§  13.  How  to  show  jurisdictional  amount. 

It  is  better  that  the  jurisdictional  amount  shall  appear  of 
record,  but  the  fact  may  be  shown  by  affidavit.1 
14.  No  jurisdiction  to  interpret  mandate  of  Circuit  Court  of 
Appeals. 

The  United  States  Supreme  Court  has  no  jurisdiction  to 
interpret  a  mandate  issued  by  the  United  States  Circuit  Court 
of  Appeals,  and  an  appeal  based  upon  an  erroneous  interpreta- 
tion by  the  U.  S.  District  Court  of  a  mandate  of  the  Court 
of  Appeals  must  be  taken  to  that  court  and  not  to  the  Supreme 
Court.2 

§  15.  Upon  reversal  in    Court  of    Appeals,  case  cannot  after 
second  trial  be  taken  direct  to  Supreme  Court. 

When  a  case  has  once  been  in  the  U.  S.  Circuit  Court  of 
Appeals  and  was  there  reversed  for  further  proceedings,  a  judg- 
ment entered  by  the  District  Court  subsequent  to  the  remand- 
ment  cannot  be  reviewed  directly  in  the  Supreme  Court  of  the 
United  States,  but  must  be  taken  again  to  the  Court  of  Appeals, 
even  though  the  questions  raised  upon  the  second  trial  involve 
constitutional  or  other  Federal  questions  which  would  have 
permitted  the  taking  of  the  case  in  the  first  instance  to  the  Supreme 
Court  of  the  United  States.3 

§  16.  Certified  questions.     §§  239  and  251  of  Federal  Judicial 
Code. 

Sec.  239  of  the  Judicial  Code  provides: 

1  United  States  v.  Trans-Missour  iFreight  Ass'n,  1GG  U.  S.  310,  17  Sup.  Ct. 
Rep.  540,  41  L.  Ed.  1017;  Robinson  v.  Suburban  Brick  Co.,  62  C.  C.  A.  484,  127 
Fed.  806. 

a  Union  Trust  Co.  v.  Westhus,  228  U.  S.  519,  33  Sup.  Ct.  Rep.  593,  57  L.  Ed. 
947;  U.  S.  v.  Shapiro,  235  U.  S.  412,  417,  35  Sup.  Ct.  Rep.  122,  59  L.  Ed.  291. 

3  Shapiro  v.  United  States,  235  U.  S.  412,  59  L.  Ed.  291,  35  Sup.Ct.  Rep.  122; 
Union  Trust  Co.  v.  Westhus,  228  U.  S.  519,  33  Sup.  Ct.  Rep.  593,  57  L.  Ed.  947; 
Brown  v.  Alton  Water  Co.,  222  U.  S.  325,  32  Sup.  Ct.  Rep.  156,  56  L.  Ed.  221; 
Carter  v.  Roberts,  177  U.  S.  496,  20  Sup.  Ct.  Rep.  713,  44  L.  Ed.  861. 

(114) 


Ch.  VII)  JURISDICTION  OF  SUPREME  COURT  OF  U.   S.  §§  17-18 

"In  any  case  within  its  appellate  jurisdiction,  as  denned  in  section  one  hundred 
and  twenty-eight,  the  Circuit  Court  of  Appeals  at  any  time  may  certify  to  the 
Supreme  Court  of  the  United  States  any  questions  or  propositions  of  law  con- 
cerning which  it  desires  the  instruction  of  that  court  for  its  proper  decision; 
and  thereupon  the  Supreme  Court  may  either  give  its  instruction  on  the  question 
and  propositions  certified  to  it,  which  shall  be  binding  upon  the  Circuit  Court  of 
Appeals  in  such  case,  or  it  may  require  that  the  whole  record  and  cause  be  sent 
up  to  it  for  its  consideration,  and  thereupon  shall  decide  the  whole  matter  in 
controversy  in  the  same  manner  as  if  it  had  been  brought  there  for  review  by 
writ  of  error  or  appeal." 

Part  of  Sec.  251  of  the  same  Code  further  provides: 

"It  shall  also  be  competent  for  said  Court  of  Appeals,  in  any  case  in  which 
its  judgment  or  decree  is  made  final  under  the  section  last  preceding,  at  any 
time  to  certify  to  the  Supreme  Court  of  the  United  States  any  questions  or 
propositions  of  law  concerning  which  it  desires  the  instruction  of  that  court  for 
their  proper  decision;  and  thereupon  the  Supreme  Court  may  either  give  its 
instructions  on  the  questions  and  propositions  certified  to  it,  which  shall  be 
binding  upon  said  Court  of  Appeals  in  such  case,  or  it  may  require  that  the  whole 
record  and  cause  be  sent  up  to  it  for  its  consideration,  and  thereupon  shall  decide 
the  whole  matter  in  controversy  in  the  same  manner,  as  if  it  had  been  brought 
there  for  review  by  writ  of  error  or  appeal." 

§  17.  The  rule. 

Rule  37  of  the  Supreme  Court  of  the  United  States  is  as  follows : 

"  1,  Where,  under  Section  239  of  the  act  entitled  'An  Act  to  codify,  revise, 
and  amend  the  laws  relating  to  the  judiciary, '  approved  March  3,  1911,  Chapter 
231,  a  Circuit  Court  of  Appeals  shall  certify  to  this  court  a  question  or  proposi- 
tion of  law,  concerning  which  it  desires  the  instruction  of  this  court  for  its  proper 
decision,  the  certificate  shall  contain  a  proper  statement  of  the  facts  on  which 
such  question  or  proposition  of  law  arises. 

"2.  If  application  is  thereupon  made  to  this  court  that  the  whole  record 
and  cause  may  be  sent  up  to  it  for  its  consideration,  the  party  making  such 
application  shall,  as  a  part  thereof,  furnish  this  court  with  a  certified  copy  of 
the  whole  of  said  record." 

§  18.  Only  specific  questions  to  be  certified. 

The  whole  case,  even  when  its  decision  turns  upon  matters  of 
law  only,  cannot  be  certified  by  the  Circuit  Court  of  Appeals 
to  the  Supreme  Court  of  the  United  States. x 

1  Chicago,  Burlington  &  Quincy  R.  R.  Co.  v.  Williams,  205  U.  S.  449,  51  L.  Ed. 
877,  27  Sup.  Ct.  Rep.  559;  U.  S.  v.  Mayer,  Judge,  235  U.  S.  55,  72,  35  Sup.  Ct. 
Rep.  16,  59  L.  Ed.  129. 

(115) 


Ch.  VII)  JURISDICTION   OF  SUPREME  COURT  OF   U.   S.  §§  19-21 

Only  questions  of  gravity  and  importance  should  be  certified 
to  the  Supreme  Court  of  the  United  States  for  instruction. x 
§  19.  Specific  propositions  of  law  only  will  be  considered  and 
answered. 

On  a  certificate  the  Supreme  Court  of  the  United  States  will 
not  go  into  the  questions  of  fact  or  mixed  questions  of  law  and 
fact — only  the  several  propositions  of  law  as  certified  by  the  U.  S. 
Circuit  Court  of  Appeals  will  be  answered. 2 

Each  distinct  point  or  proposition  of  law  must  be  clearly 
stated  and  certified  so  that  it  can  be  distinctly  answered  without 
regard  to  the  other  issues  in  the  case. 3 

The  Supreme  Court  of  the  United  States  is  confined  to  facts 
stated  in  the  certificate  and  cannot  consider  other  facts  set  forth 
in  the  briefs.4 
§20.  Categorical  answers. 

When  a  case  is  certified,  the  Supreme  Court  of  the  U.  S. 
will   make   a   categorical  answer   to   each  question  submitted 
to  it.5 
§  21.  Questions  in  bankruptcy  may  be  certified. 

Questions  of  law  in  bankruptcy  matters  may  be  certified  by 
the  United  States  Court  of  Appeals  to  the  Supreme  Court  of 
the  United  States. 6 

'Ex  Parte  Lau  Ow  Bcw,  141  U.  S.  583,  12  Sup.  Ct.  Rep.  43,  25  L.  Ed.  869. 

9  Stratton's  Independence  v.  Howbert,  231  U.  S.  399,  34  Sup.  Ct.  Rep.  136,  58 
L.  Ed.  285. 

sMcHenry  v.  Alforth,  168  U.  S.  651,  18  Sup.  Ct.  Rep.  242,  42  L.  Ed.  614; 
Columbus  Watch  Co.  v.  Robins,  148  U.  S.  266,  13  Sup.  Ct.  Rep.  594,  37  L. 
Ed.  445;  U.  S.  v.  Mayer,  Judge,  235  U.  S.  55,  72,  59  L.  Ed.  129,  35  Sup.  Ct. 
Rep.  16. 

<  Wall  v.  Cox,  181  U.  S.  244,  21  Sup.  Ct.  Rep.  642,  45  L.  Ed.  845. 

s  In  re  Elkus,  216  U.  S.  115,  30  Sup.  Ct.  Rep.  377,  54  L.  Ed.  407. 

6  White  v.  Schlock,  178  U.  S.  542,  20  Sup.  Ct.  Rep.  1007,  44  L.  Ed.  1183; 
Wall  v.  Cox,  181  U.  S.  244,  21  Sup.  Ct.  Rep.  642,  45  L.  Ed.  845;  Metcalf  v. 
Barker,  187  U.  S.  165,  23  Sup.  Ct.  Rep.  67,  47  L.  Ed.  122;  In  re  Wood,  210  U.  S. 
246,  28  Sup.  Ct.  621,  52  L.  Ed.  1046;  In  re  Elkus,  216  U.  S.  115,  30  Sup.  Ct.  Rep. 
377,  54  L.  Ed.  407;  Matter  of  Harris,  221  U.  S.  274,  31  Sup.  Ct.  Rep.  557,  55  L. 
Ed.  732. 

(116) 


Ch.  VII)  JURISDICTION  OF   SUPREME  COURT  OF  U.   S.  §§  22-27 

§  22.  No  certification  after  decision  in  Circuit  Court  of  Appeals. 

A  case  cannot  be  certified  to  the  United  States  Supreme  Court 
after  decision  by  the  Court  of  Appeals. l 
§  23.  Clerk's  fee  must  be  paid  before  record  furnished. 

Clause  6  of  Rule  31  of  the  U.  S.  Circuit  Court  of  Appeals  for 
the  Second  Circuit  provides  for  the  payment  of  all  fees  to  the 
clerk  of  the  Court  of  Appeals  before  a  transcript  of  the  record 
will  be  transmitted  to  the  clerk  of  the  Supreme  Court  of  the 
United  States. 
§  24.  Record  must  be  furnished  on  application. 

"Where  application  is  made  to  this  court  to  require  a  case  to  be  certified  to  it 
for  its  review  and  determination,  a  certified  copy  of  the  entire  record  of  the  case 
in  the  Circuit  Court  of  Appeals  shall  be  furnished  to  this  court  by  the  applicant 
as  part  of  the  application."     (§  3  of  Rule  37  of  U.  S.  Supreme  Court.) 

§  25.  Form  of  certificate.2 

§  26.  Jurisdiction  of  the  U.  S.  Supreme  Court  in  bankruptcy. 

Sec.  252  of  the  Federal  Judicial  Code  provides: 

"The  Supreme  Court  of  the  United  States  is  hereby  invested  with  appellate 
jurisdiction  of  controversies  arising  in  bankruptcy  proceedings,  from  the  courts 
of  bankruptcy,  from  which  it  has  appellate  jurisdiction  in  other  cases;  and  shall 
exercise  a  like  jurisdiction  from  courts  of  bankruptcy  not  within  any  organized 
circuit  of  the  United  States  and  from  the  Supreme  Court  of  the  District  of 
Columbia." 

§  27.  Under  the  new  law  no  appeal  in  bankruptcy  lies  to  the 
Supreme  Court. 

Section  252  of  the  Federal  Judicial  Code,  permitting  an  appeal 
from  the  U.  S.  Court  of  Appeals  to  the  Supreme  Court,  was  im- 
pliedly repealed  by  the  Act  of  Congress  of  September  6,  1916,  and 
the  remedy  is  now  limited  to  a  petition  for  certiorari. 3 

1  Wall  v.  Cox,  181  U.  S.  245,  21  Sup.  Ct.  Rep.  642,  45  L.  Ed.  845. 

a  For  form  of  approved  certificate  see:  Hallowell  v.  U.  S.,  221  U.  S.  317, 31  Sup. 
Ct.  Rep.  587,  55  L.  Ed.  750;  Hills  v.  Hoover,  220  U.  S.  329,  31  Sup.  Ct.  Rep.  402, 
55  L.  Ed.  485;  Delaware  v.  Albany,  213  U.  S.  435,  29  Sup.  Ct.  Rep.  540,  53  L.  Ed. 
862. 

3  Staats  Co.  v.  Security  Trust  and  Savings  Bank,  decided  March  7,  1917,  opin- 
ion by  Mr.  Justice  Day,  not  reported  at  the  time  this  book  went  to  press. 

(117) 


Ch.  VII)  JURISDICTION   OF   SUPREME  COURT  OF   U.    S.  §§  2S-31 

§  28.  Prohibition  and  mandamus.     Prohibition  limited  to  ad- 
miralty. 
Sec.  CSS  Federal  Statutes  is  as  follows : 

"The  Supreme  Court  shall  have  power  to  issue  writs  of  prohibition  in  the 
district  courts,  when  proceeding  as  courts  of  admiralty  and  maritime  jurisdic- 
tion; and  writs  of  mandamus,  in  cases  warranted  by  the  principles  and  usages 
of  law,  to  any  courts  appointed  under  the  authority  of  the  United  States,  or 
to  persons  holding  office  under  the  authority  of  the  United  States,  where  a  State, 
or  an  ambassador,  or  other  public  minister,  or  a  consul  or  vice-consul  is  a  party." 

This  section  limits  the  jurisdiction  of  the  Supreme  Court 
to  issue  writs  of  prohibition  to  admiralty  and  maritime  cases 
only. s 
§  29.  Mandamus  used  in  aid  of  appellate  jurisdiction. 

As  a  rule,  mandamus  will  not  be  issued  except  in  aid  of 
appellate  jurisdiction. 2 
§  30.  Mandamus  allowed  in  absence  of  appellate  remedy. 

But  where  there  is  no  provision  for  an  appeal,  mandamus  will 
be  allowed.3 
§  31.  General  use  of  mandamus. 

The  writ  of  mandamus  cannot  be  issued  to  compel  a  judicia 
tribunal  to  decide  a  matter  within  its  discretion  in  a  particular 
way,  or  to  review  its  judicial  action  had  in  the  exercise  of  legiti- 
mate jurisdiction,  nor  be  used  to  perform  the  office  of  an  appeal 
or  writ  of  error.  And  it  only  lies,  as  a  general  rule,  where  there  is 
no  other  adequate  remedy.  As  respects  the  Federal  courts,  it  is 
well  settled  that  where  the  mandate  leaves  nothing  to  the  judg- 
ment or  discretion  of  the  court  below,  and  that  court  mistakes  or 
misconstrues  the  decree  or  judgment  of  the  Supreme  Court  and 

*  Ex  parte  Easton,  95  U.  S.  72,  24  L.  Ed.  373;  In  re  Cooper,  143  U.  S.  472, 12 
Sup.  Ct.  Rep.  453,  36  L.  Ed.  232,  but  see  U.  S.  v.  Mayer,  235  U.  S.  55,  35  Sup.  Ct. 
Rep.  16,  59  L.  Ed.  129,  where  a  writ  of  prohibition  was  issued  in  a  criminal  case. 

2  In  re  Massachusetts,  197  U.  S.  4S2,  25  Sup.  Ct.  Rep.  512,  49  L.  Ed.  845;  In  re 
Glaser,  198  U.  S.  171,  25  Sup.  Ct.  Rep.  653,  49  L.  Ed.  1000. 

3  Ex  parte  Metropolitan  Waterworks  Co.,  220  U.  S.  539,  31  Sup.  Ct.  Rep.  600, 
55  L.  Ed.  575;  Ex  parte  Harding,  219  U.  S.  363,  31  Sup.  Ct.  Rep.  324,  55  L. 
Ed.  252. 

(US) 


Ch.  VII)  JURISDICTION  OF   SUPREME  COURT  OF  U.   S.  §§  32-33 

does  not  give  full  effect  to  the  mandate,  its  action  may  be  con- 
trolled, either  upon  a  new  appeal  or  writ  of  error  if  involving  a 
sufficient  amount,  or  by  writ  of  mandamus  to  execute  the  mandate 
of  the  Supreme  Court. J 
§  32.  Mandamus  when  inferior  court  acts  without  authority. 

The  writ  was  granted  in  cases  where  the  inferior  Federal 
courts  have  assumed  jurisdiction  of  removal  causes,  and  acted 
beyond  their  power  and  authority  in  so  doing. 2  Mandamus  was 
also  awarded  in  a  case  where  the  district  court  without  jurisdic- 
tion vacated  a  judgment  after  term.3 
§  33.  Ministerial  duty  exclusively. 

It  is  elementary  law  that  mandamus  will  only  lie  to  enforce 
a  ministerial  duty  as  contradistinguished  from  a  duty  which  is 
merely  discretionary.4  The  duty  to  be  enforced  by  mandamus 
must  not  only  be  ministerial,  but  it  must  be  a  duty  which  exists 
at  the  time  when  the  application  for  the  mandamus  is  made.5 
The  obligation  must  be  both  peremptory  and  plainly  defined.  The 
law  must  not  only  authorize  the  act,  but  it  must  require  the  act 
to  be  done. 6  Mandamus  may  be  resorted  to  to  compel  a  judge  to 
decide  or  enter  judgment  in  a  case,  but  not  in  a  particular  way. 7 

1  Ex  parte  Harding,  219  U.  S.  363,  31  Sup.  Ct.  Rep.  324,  55  L.  Ed.  252; 
McClellan  v.  Garland,  217  U.  S.  268,  30  Sup.  Ct.  Rep.  501,  54  L.  Ed.  762;  In  re 
Blake,  175  U.  S.  117,  20  Sup.  Ct.  Rep.  42,  44  L.  Ed.  94;  City  Bank  of  Ft.  Worth 
v.  Hunter,  152  U.  S.  512,  14  Sup.  Ct.  Rep.  675,  38  L.  Ed.  534;  In  re  SanfordPork& 
Tool  Co.,  160  U.  S.  247,  16  Sup.  Ct.  Rep.  291,  40  L.  Ed.  414;  In  re  Potts,  166  U. 
S.  263,  17  Sup.  Ct.  520,  41  L.  Ed.  994. 

8  In  re  Winn,  213  U.  S.  458,  459,  29  Sup.  Rep.  515,  53  L.  Ed.  873;  Virginia  v. 
Paul,  148  U.  S.  107,  13  Sup.  Ct.  Rep.  536,  37  L.  Ed.  386. 

s  In  re  MetropoUtan  Trust  Co.,  218  U.  S.  321,  31  Sup.  Ct.  Rep.  18,  54  L.  Ed. 
1051. 

*U.  S.  v.  Lamont,  155  U.  S.  303,  310,  15  Sup.  Ct.  Rep.  97;  39  L.  Ed.  160; 
Noble  v.  Union  River  Logging  Co.,  147  U.  S.  165,  13  Sup.  Ct.  Rep.  271,  37  L.  Ed. 
123;  U.  S.  v.  Black,  128  U.  S.  40,  9  Sup.  Ct.  Rep.  12,  32  L.  Ed.  354;  Butterworth  v. 
U.  S.,  112  U.  S.  50,  5  Sup.  Ct.  Rep.  25, 28  L.  Ed.  656. 

s  Ex  parte  Rowland,  104  U.  S.  604, 26  L.  Ed.  861 ;  U.  S.  v.  Lamont,  155  U.  S.  303, 
15  Sup.  Ct.  Rep.  97,  39  L.  Ed.  160. 

«U.  S.  v.  Lamont,  155  U.  S.  303,  310,  15  Sup.  Ct.  Rep.  97,  39  L.  Ed.  160. 

1  Re  Parsons,  150  U.  S.  150,  14  Sup.  Ct.  Rep.  50,  37  L.  Ed.  1034;  Re  Hohorst, 

(119) 


Ch.  VII)  JURISDICTION  OF   SUPREME  COURT  OF  U.   S.  §§  34-36 

§  34.  Mandamus  to  compel  reversal  will  not  lie. 

Mandamus  will  not  lie  to  compel  a  reversal  of  a  decision, 
either  interlocutory  or  final,  made  in  the  exercise  of  a  lawful 
jurisdiction;  especially  where  in  regular  course  the  decision  may 
be  reviewed  upon  a  writ  of  error  or  an  appeal.  And  this  is  true 
of  a  decision  denying  a  motion  to  remand. z 
§  35.  Judgment  on  mandamus  reviewed  by  writ  of  error. 

A  judgment  of  the  Federal  District  Court  refusing  or  award- 
ing a  writ  of  mandamus  may  be  reviewed  only  by  writ  of  error 
and  not  by  appeal. 2 
§  36.  Mandamus  jurisdiction  of  U.  S.  District  Court. 

In  absence  of  statutory  authority,  district  courts  of  U.  S. 
cannot  issue  a  writ  of  mandamus,  as  an  original  and  independent 
remedy  and  are  limited  to  its  use  as  a  process  in  the  enforcement 
of  rights  in  aid  of  a  jurisdiction  previously  acquired  by  the  court 
for  other  purposes. 3 

150  U.  S.  653,  14  Sup.  Ct.  Rep.  221,  37  L.  Ed.  1211;  In  re  Watts,  214  Fed.  50 
(C.  C.  A.  2d  Cir.). 

1  Ex  parte  Roe,  234  U.  S.  70,  34  Sup.  Ct.  Rep.  722,  58  L.  Ed.  1217. 

'  U.  S.  v.  Louisville  &  Nashville  R.  R.  Co.,  236  U.  S.  318,  35  Sup.  Ct.  Rep.  363, 
59  L.  Ed.  598.  ;'    ' .  .  - 

s  Heine  v.  Sever  Com.  19  Wall.  655,  22  L.  Ed.  223;  Smith  v.  Bourbon  County, 
127  U.  S.  106,  8  Sup.  Ct.  Rep.  1043,  32  L.  Ed.  73;  U.  S.  v.  Louisville  R.  Co.,  212 
Fed.  492 ;  U.  S.  v.  N.  C.  St.  L.  R.  217  Fed.  254,  259. 


(120) 


Ch.  VIII)  CERTIORARI  FROM  U.   S.   SUPREME  COURT 


CHAPTER  VIII 


Certiorari  from  U.  S.  Supreme  Court  to  U.  S.  Circuit  Court  of 

Appeals. 


Sec, 
1. 

2. 

3. 

4. 


5. 


6. 

7. 
8. 
9. 

10. 

11. 


12. 


13. 


14. 

15. 

16. 
17. 


Jurisdiction  of  the  Supreme  Court 

of  U.  S. 
New  Legislation — Act  of  September 

6,  1916. 
Stay  by  Court  of  Appeals. 
Circuit  Court  of  Appeals  has  no 

power    to    allow     certiorari     to 

Supreme  Court. 
Instructions  relative  to  application 

for  writs  of  certiorari  under  Act 

of  March  3,  1891,  issued  by  the 

clerk  of  the  Supreme  Court. 
Contents  of  petition — Notice. 
Time  limit  for  application. 
Petition  may  be  filed  in  vacation. 
Review  confined  to  errors  specified 

in  petition. 
Errors  not  raised  in  trial  court  and 

not  in  record. 
At  what  stage  certiorari  may  issue: 

(a)  At  any  time. 

(b)  As  a  rule  jurisdiction  declined 
before  final  judgment. 

Scope  of  review. 

(a)  Every    question     raised     by 
assignment    considered. 

(b)  Disposition  on  merits. 
Questions  not  raised  in  trial  court 

but  passed  upon  by  Court  of  Ap- 
peals may  be  reviewed. 

Effect  of  refusal  of  Court  of  Appeals 
to  take  jurisdiction. 

Certiorari  in  interlocutory  appeals. 

More  than  one  writ  allowed — when. 

No  jurisdictional  amount. 


Sec. 

18.  Administrative  orders  not   review- 

able. 

19.  Certiorari   will   not   lie   where   an 

appeal  may  be  taken. 

(a)  In  general. 

(b)  Trademark  cases. 

(c)  Contempt  proceedings. 

(d)  Cases  in  Admiralty. 

(e)  Habeas  Corpus. 

(f)  Criminal  cases. 

20.  Where  both  certiorari  and  writ  of 

error  may  be  resorted  to. 

21.  When  the  writ  of  certiorari  will  lie: 

(a)  No  definite  rule. 

(b)  Not  issued  as  of  right — Only 
in  important  cases. 

(c)  To  correct  excesses  of  juris- 
diction. 

(d)  Vests  final  control  in  Supreme 
Court. 

(e)  To  avoid  conflict  of  courts. 

(f)  National  questions. 

(g)  Matters  of  navigation, 
(h)  Court  of  Appeals  divided. 

(i)  For  the  sake  of  uniformity  of 
law. 

(j)  Conflict  of  decision  affecting 
same  patent. 

(k)  Disqualification  of  judge. 

(1)  Jurisdiction  of  Court  of  Ap- 
peals in  issue. 

(m)  In  criminal  cases. 

22.  Effect  of  allowance  of  the  writ. 

23.  Mandate  on  certiorari. 

24.  Refusal  of  writ — effect  of. 

(121) 


Ch.  VIII)  CERTIORARI   FROM  U.  S.   SUPREME  COURT  §§  1-3 

§  I.  Jurisdiction  of  the  Supreme  Court  of  United  States. 
Sec.  240  of  the  Judicial  Code  provides : 

"In  any  case,  civil  or  criminal,  in  which  the  judgment  or  decree  of  the  Circuit 
Court  of  Appeals  is  made  final  by  the  provisions  of  this  Title,  it  shall  be  com- 
petent for  the  Supreme  Court  to  require,  by  certiorari  or  otherwise,  upon  the 
petition  of  any  party  thereto,  any  such  case  to  be  certified  to  the  Supreme  Court 
for  its  review  and  determination,  with  the  same  power  and  authority  in  the 
case  as  if  it  had  been  carried  by  appeal  or  writ  of  error  to  the  Supreme 
Court." 

§  2.  New  Legislation — Act  of  September  6,  1916. 

On  September  6,  1916,  Congress  passed  the  following  addi- 
tional act  making  final  certain  other  judgments  of  the  Circuit 
Court  of  Appeals.     Said  Act  is  as  follows : 

"§  1120a  (Act  Jan.  28,  1915,  C.  22,  §  4,  as  amended,  Act  Sept.  6,  1916,  C.  448 

§  3).  Judgments  and  decrees  of  the  Circuit  Courts  of  Appeals  in  all  proceedings 
and  causes  arising  under  'An  Act  to  establish  a  uniform  system  of  bankruptcy 
throughout  the  United  States, '  approved  July  first,  eighteen  hundred  and  ninety- 
eight,  and  in  all  controversies  arising  in  such  proceedings  and  causes;  also,  in 
all  causes  arising  under  'An  Act  relating  to  the  liability  of  common  carriers  by 
railroad  to  their  employees  in  certain  cases, '  approved  April  twenty-second, 
nineteen  hundred  and  eight;  also,  in  all  causes  arising  under  'An  Act  to  promote 
the  safety  of  employees  and  travelers  upon  railroads  by  limiting  the  hours  of 
service  of  employees  thereon, '  approved  March  fourth,  nineteen  hundred  and 
seven;  also,  in  all  causes  arising  under  'An  Act  to  promote  the  safety  of  employ- 
ees and  travelers  upon  railroads  by  compelling  common  carriers  engaged  in 
interstate  commerce  to  equip  their  cars  with  automatic  couplers  and  continuous 
brakes  and  their  locomotives  with  driving-wheel  brakes,  and  for  other  purposes, ' 
approved,  March  second,  eighteen  hundred  and  ninety- three;  and,  also,  in  all 
causes  arising  under  any  amendment  or  supplement  to  any  one  of  the  afore- 
mentioned Acts  which  has  been  heretofore  or  may  hereafter  be  enacted,  shall 
be  final,  save  only  that  it  shall  be  competent  for  the  Supreme  Court  to  require 
by  certiorari,  upon  a  petition  of  any  party  thereto,  that  the  proceedings,  case,  or 
controversy  be  certified  to  it  for  review  and  determination,  with  the  same  power  and 
authority  and  with  like  effect  as  if  taken  to  that  court  by  appeal  or  writ  of  error," 
(38  Stat.  804, 39  Stat.) 

§  3.  Stay  by  Court  of  Appeals. 

The  Circuit  Court  of  Appeals  has  power  and  usually  does 
grant  stays  of  execution  for  a  limited  time  to  enable  the  defeated 
(122) 


Ch.  VIII)  CERTIORARI  FROM   U.   S.    SUPREME   COURT  §§  4-5 

party  to  apply  for  a   writ  of  certiorari.     The  court,  however, 
exacts  the  utmost  diligence  in  the  matter  of  presentation  of  the 
petition  to  the  Supreme  Court  of  the  United  States.1 
§  4.  Circuit  Court  of  Appeals  has  no  power  to  allow  certiorari 

to  Supreme  Court. 

A  writ  of  certiorari  cannot  be  allowed  by  the  U.S.  Circuit  Court 

of  Appeals;  the  proper  remedy  to  review  a  judgment  of  conviction 

made  by  the  District  Court  is  by  writ  of  error  and  not  certiorari. a 

§  5.  Instructions  relative  to  applications  for  writs  of  certiorari 

under  Act  of  March  3,  1891,  issued  by  the  clerk  of  the 

U.  S.  Supreme  Court. 
The  following  are  the  requirements  on  applications  for  writs 
of  certiorari  under  the  Act  of  March  3,  1891 : 

"Petitions  are  docketed  in  this  Court  as ,  Petitioner,  v. — 

Respondent. 

"Before  the  petition  will  be  docketed  there  must  be  furnished  this  office: 

"  (1)  An  original  petition  with  written  signature  of  counsel. 

"  (2)  A  certified  copy  of  the  transcript  of  the  record,  including  all  proceedings 
in  the  Circuit  Court  of  Appeals. 

"  (3)  An  appearance  of  counsel  for  petitioner,  signed  by  a  member  of  the  bar 
of  this  Court. 

"  (4)  A  deposit  of  twenty-five  dollars  ($25.00)  on  account  of  costs. 

"Before  submission  of  the  petition  there  must  be  furnished: 

"(1)  Proof  of  sendee  of  notice  of  date  fixed  for  submission  and  copies  of 
petition  and  brief  upon  counsel  for  the  respondent.  Notice  of  the  date  of  sub- 
mission of  the  petition,  together  with  a  copy  of  the  petition  and  brief,  if  any 
in  support  of  the  same  must  be  served  on  counsel  for  the  respondent  at  least 
two  weeks  before  such  date  except  where  the  counsel  to  be  notified  resides  west 
of  the  Rocky  Mountains,  in  which  case,  the  time  shall  be  at  least  three  weeks. 

"  (2)  Thirty  (30)  printed  copies  of  the  petition  and  brief  in  support  of  peti- 
tion, if  any  such  brief  is  to  be  filed,  under  one  cover. 

"  (3)  At  least  nine  (9)  uncertified  copies  of  the  record,  which  must  contain 
all  of  the  proceedings  in  the  Circuit  Court  of  Appeals.  These  copies  may  be 
made  up  by  using  copies  of  the  record  as  printed  for  the  Circuit  Court  of  Appeals 
and  adding  thereto  printed  copies  of  the  proceedings  in  that  Court.  If  a  suffi- 
cient number  of  records  thus  made  up  cannot  be  obtained,  making  it  necessary 
to  reprint  the  record  for  use  on  the  hearing  of  the  petition,  fifty  (50)  copies  must 
be  printed  under  my  supervision  in  order  that,  should  the  petition  be  granted, 
there  may  be  a  sufficient  number  for  use  on  the  final  hearing. 


1  In  Re  Woods,  143  U.  S.  202,  12  Sup.  Ct.  Rep.  417,  36  L.  Ed.  125. 

2  Whitney  v.  Dick,  202  U.  S.  132,  26  Sup.  Ct.  Rep.  584,  50  L.  Ed.  963. 

(123) 


Ch.  VIII)  CERTIORARI  FROM   U.    S.    SUPREME   COURT  §§  6-7 

"Monday being  motion  day, some  Monday  must  be  fixed  upon  for  the  submis- 
sion of  the  petition.  No  oral  argument  is  permitted  on  such  petitions  but  they 
must  be  called  up  and  submitted  in  open  court  by  counsel  for  petitioner,  or  by 
some  attorney  in  his  behalf. 

"If  a  respondent  desires  to  oppose  a  petition,  thirty  (30)  copies  of  a  brief  for 
such  respondent  must  be  filed.  These  briefs  must  bear  the  name  of  a  member 
of  the  bar  of  this  court,  who  must  also  enter  an  appearance  for  the  respondent. 
It  is  not  necessary,  however,  for  such  counsel  to  be  present  in  court  when  the 
petition  is  submitted. 

"All  papers  in  the  case  must  be  filed  not  later  than  the  Saturday  preceding 
the  Monday  fixed  for  the  submission  of  the  petition."1 

§  6.  Contents  of  Petition — Notice. 

Section  3  of  Supreme  Court  rule  37  provides: 

"§  3.  Where  an  application  is  submitted  to  this  court  for  a  writ  of  certiorari 
to  review  a  decision  of  a  Circuit  Court  of  Appeals  or  any  other  court,  it  shall 
be  necessary  for  the  petitioner  to  furnish  as  an  exhibit  to  the  petition  a  certified 
copy  of  the  entire  transcript  of  record  of  the  case,  including  the  proceedings  in 
the  court  to  which  the  writ  of  certiorari  is  asked  to  be  directed.  The  petition 
shall  contain  only  a  summary  and  short  statement  of  the  matter  involved  and 
the  general  reasons  relied  on  for  the  allowance  of  the  writ.  A  failure  to  comply 
with  this  provision  will  be  deemed  a  sufficient  reason  for  denying  the  petition. 
Thirty  printed  copies  of  such  petition  and  of  any  brief  deemed  necessary  shall 
be  filed.  Notice  of  the  date  of  submission  of  the  petition,  together  with  a  copy 
of  the  petition  and  brief,  if  any,  in  support  of  the  same  shall  be  served  on  the 
counsel  for  the  respondent  at  least  two  weeks  before  such  date  in  all  cases  except 
where  the  counsel  to  be  notified  resides  west  of  the  Rocky  Mountains,  in  which 
cases  the  time  shall  be  at  least  three  weeks.  The  brief  for  the  respondent,  if 
any,  shall  be  filed  at  least  three  days  before  the  date  fixed  for  the  submission  of 
the  petition.  Oral  argument  will  not  be  permitted  on  such  petitions,  and  no 
petition  will  be  received  within  three  days  next  before  the  day  fixed  upon  for 
the  adjournment  of  the  court  for  the  term." 

§  7.  Time  limit  for  application. 

Three  months  is  the  limit  within  which  a  defeated  party- 
may  apply  to  the  U.  S.  Supreme  Court  for  a  writ  of  certiorari.3 
Reasonable  promptness  is  required. 3 

1  For  Form  Petition  for  Certiorari,  see  Appendix. 

a  §  1228a,  Act  Sept.  6,  1916,  c.  448,  §  6. 

a  The  Conqueror,  166  U.  S.  110,  17  Sup.  Ct.  Rep.  510,  41  L.  Ed.  937. 

(124) 


Ch.  VIII)     CERTIORARI  FROM  U.  S.  SUPREME  COURT       §§  8-11 

§  8.  Petition  may  be  filed  during  adjournment  or  in  vacation. 

Section  4  of  Rule  37  was  amended  on  March  26,  1917,  and 
provides: 

"  4.  An  application  for  a  writ  of  certiorari  will  be  deemed  in  time  when  the 
petition  therefor,  accompanied  by  the  printed  record  and  brief,  is  filed  within 
the  period  prescribed  by  law:  Provided  this  is  followed  by  submitting  the 
petition  in  open  court  on  some  motion  day  not  later  than  the  first  one  which 
follows  a  period  of  four  weeks  after  such  filing.  Notice  of  the  date  of  submis- 
sion and  copies  of  the  petition  and  brief  must  be  filed  as  required  by  Section  3 
of  this  rule." 

§  9.  Review  confined  to  errors  specified  in  petition. 

The  review  is  limited  to  the  errors  assigned  in  the  petition 
for  certiorari. x 
§  10.  Errors  not  raised  in  trial  court  and  not  in  record. 

The  Supreme  Court  will  not  consider  errors  which  were  not 
raised  in  the  court  below. 2 

Although  certiorari  brings  up  the  whole  record.3 

Only  matters  appearing  in  the  record  will  be  examined. 4 
§  11.  At  what  stage  certiorari  may  issue. 

(a)  It  was  held  that  the  Supreme  Court  of  the  United  States 
has  the  power  to  require  anycase  to  be  sent  to  it  for  review  at 
any  time  and  at  any  state  of  the  proceedings  either  before  or  after 
judgment.5  But  the  question  is  now  open  whether,  under  the 
Act  of  September  6,  1916,  providing  that  certiorari  may  be  al- 

1  Montana  Mining  Co.  v.  St.  Louis,  186  U.  S.  31,  22  Sup.  Ct.  Rep.  744,  46  L.  Ed. 
1039;  Hubbard  v.  Todd,  171  U.  S.  474,  19  Sup.  Ct.  Rep.  14,  43  L.  Ed.  246. 

2  Saltonstall  v.  Birtwell,  164  U.  S.  70,  17  Sup.  Ct.  Rep.  19,  41  L.  Ed.  348. 

s  Lockwood  v.  Exchange  Bank,  190  U.  S.  294,  23  Sup.  Ct.  Rep.  751,  47  L.  Ed. 
1061. 

4  Green  County  v.  Quinlan,  211  U.  S.  582,  29  Sup.  Ct.  Rep.  162,  53  L.  Ed.  335. 

s  Hamilton-Brown  Shoe  Co.  v.  Wolf  Bros.,  240  U.  S  251,  36  Sup.  Ct.  Rep.  269, 
60  L.  ed.  629,  holding  also  that  refusal  of  writ  not  a  bar  to  second  application  after 
final  judgment.  American  Construction  Co.  Jacv.ksonville  R.  R.  Co.,  148  U.  S. 
372,  13  Sup.  Ct.  Rep.  158,  37  L.  Ed.  486;  The  Conqueror,  166  U.  S.  113,  17  Sup. 
Ct.  Rep.  510,  41  L.  Ed.  939;  U.  S.  v.  Three  Friends,  166  U.  S.  2-5,  17  Sup.  Ct. 
Rep.  495,  41  L.  Ed.  897;  Forsyth  v.  Hammond,  166  U.  S.  506,  17  Sup.  Ct. 
Rep.  665,  41  L.  Ed.  1095. 

(125) 


Ch.  VIII)  CERTIORARI  FROM  U.   S.   SUPREME  COURT  §§  12-14 

lowed  "after  entry  of  judgment  or  decree,"  the  authority  to 
grant  such  writ  before  final  judgment  has  not  been  taken  away. 
It  may  be  directed  to  the  trial  Court. r 

(b)  The  Supreme  Court  as  a  rule  declines  to  issue  writs  of 
certiorari  before  the  U.  S.  Circuit  Court  of  Appeals  has  finally 
passed  on  the  case. 2 

But  circumstances  may  arise  when  the  writ  may  be  awarded 
before  the  decision  of  the  case  by  the  Court  of  Appeals.3 
§  12.  Scope  of  review. 

(a)  On  certiorari  the  Supreme  Court  of  the  United  States, 
upon  proper  assignments  of  error,  may  examine  every  question 
in  the  case,  although  the  Court  of  Appeals,  by  reason  of  a  former 
decision  made  by  it,  was  not  in  position  to  do  so. 4 

(b)  The  Supreme  Court  may  dispose  of  the  entire  case  on 
the  merits. s 

§  13.  Questions  not  raised  in  trial  court  but  passed  upon  by  Court 
of  Appeals  may  be  reviewed. 

The  Supreme  Court  may  consider  the  questions  passed  upon 
by  the  U.  S.  Court  of  Appeals,  although  they  were  not  raised  in 
the  trial  court. 6 
§  14.  Effect  of  refusal  of  Court  of  Appeals  to  take  jurisdiction. 

When  all.  S.  Circuit  Court  of  Appeals  erroneously  refuses 
to  entertain  jurisdiction  of  a  cause  and  a  writ  of  certiorari  was 
allowed  bringing  up  the  whole  record,  the  Supreme  Court  of  the 
United  States,  while  having  the  power  to  do  so,  will  not  consider 


*Ex  parte  Chetwood,  165  U.  S.  443,  17  Sup.  Ct.  Rep.  385,  40  L.  ed.  782;  ex 
parte  Lange,  18  Wall.  166,  21  L.  ed.  872. 

3  Panama  Ry.  Co.  v.  Napier  Shipping  Co.,  166  U.  S.  284,  17  Sup.  Ct.  Rep.  572, 
41  L.  Ed.  1004;  The  Conqueror,  166  U.  S.  113,  17  Sup.  Ct.  Rep.  510,  41  L.  Ed. 
939;  Good  Shot  v.  U.  S.,  179  U.  S.  87,  21  Sup.  Ct.  Rep.  33,  45  L.  Ed.  101. 

3  The  Conqueror,  166  U.  S.  114,  17  Sup.  Ct.  Rep.  510,  41  L.  Ed.  939. 

4  Panama  Ry.  Co.  v.  Napier  Shipping  Co.,  166  U.  S.  280,  17  Sup.  Ct.  Rep.  572, 
14  L.  Ed.  1004. 

s  Denver  v.  New  York  Trust  Co.,  229  U.  S.  123,  33  Sup.  Ct.  Rep.  657,  57  L. 

Ed.  1101. 

6  Friend  v.  Talcott,  228  U.  S.  27,  33  Sup.  Ct.  Rep.  505,  57  L.  Ed.  718. 

(126) 


Ch.  VIII)  CERTIORARI  FROM  U.   S.   SUPREME  COURT  §§  15~19 

the  case  on  the  merits,  but  will  remand  the  cause  to  the  Court 
of  Appeals  for  decision  on  the  merits. x 
§  15.  Certiorari  in  interlocutory  appeals. 

The  Supreme  Court  has  power  to  review  by  certiorari  a  deci- 
sion of  the  U.  S.  Circuit  Court  of  Appeals  made  in  an  interlocu- 
tory appeal,  but  the  power  will  be  sparingly  exercised.2 
§  16.  More  than  one  writ  allowed — when. 

More  than  one  writ  of  certiorari  may  be  applied  for  to  review 
later  proceedings.3 
§  17.  No  jurisdictional  amount. 

No  jurisdictional  amount  is  required  on  certiorari.4 
§  18.  Administrative  orders  not  reviewable. 

A  ruling  by  the  postmaster  general  barring  certain  mail 
cannot  be  reviewed  in  the  U.  S.  Supreme  Court,  by  certiorari.5 

But  relief  may  be  had  in  equity. 6 
§  19.  Certiorari  will  not  lie  where  an  appeal  may  be  taken. 

(a)  The  power  conferred  upon  the  United  States  Supreme 
Court  by  Sec.  240  of  the  Judicial  Code  to  require,  by  writ  of 
certiorari,  that  cases  in  the  Circuit  Courts  of  Appeals  be  certified 
there  for  review  and  determination,  is  plainly  confined  to  that 
class  of  cases  in  which,  according  to  the  provisions  of  §§  128  and 
241,  the  final  decrees  and  judgments  of  those  courts  are  not 
reviewable  upon  appeal  or  writ  of  error ;  that  is  to  say,  if  a  case  be 
one  which  may  come  there  under  Sec.  241  by  appeal  or  writ  of 

1  Lutcher  Lumber  Co.  v.  Knight,  217  U.  S.  257,  30  Sup.  Ct.  Rep.  505,  54  L.  Ed. 
759;  Brown  v.  Fletcher,  237  U.  S.  583,  35  Sup.  Ct.  Rep.  750,  59  L.  Ed.  1128;  but  see 
Lamar  v.  U.  S.,  241  U.  S.  103,  36  Sup.  Ct.  Rep.  535,  60  L.  Ed.  912;  Mutual  Life  Ins. 
Co.  v.  Phinney,  178  U.  S.  327,  20  Sup.  Ct.  Rep.  906,  44  L.  Ed.  1088. 

2  Denver  v.  New  York  Trust  Co.,  229  U.  S.  123,  33  Sup.  Ct.  Rep.  657,  57  L. 
Ed.  1101. 

3  Erie  R.  R.  Co.  v.  Erie  Transp.  Co.,  204  U.  S.  220,  27  Sup.  Ct.  Rep.  246,  51  L. 
Ed.  450. 

4  Whitney  v.  Dick,  202  U.  S.  132,  26  Sup.  Ct.  Rep.  584,  50  L.  Ed.  963. 

s  Degge  v.  Hitchcock,  229  U.  S.  162,  164,  33  Sup.  Ct.  Rep.  639,  57  L.  Ed.  1135. 

6  American  School  v.  McAnnulty,  187  U.  S.  94,  47  L.  Ed.  90,  23  Sup.  Ct.  Rep. 
33;  Philadelphia  Co.  v.  Stimson,  223  U.  S.  620,  56  L.  Ed.  576, 32  Sup.  Ct.  Rep.  340; 
Degge  v.  Hitchcock,  229  U.  S.  162,  164,  33  Sup.  Ct.  Rep.  639,  57  L.  Ed.  1135. 

"     (127) 


Ch.  VIII)  CERTIORARI  FROM  U.   S.   SUPREME  COURT  §  19 

error  after  a  final  decree  or  judgment  in  the  Circuit  Court  of 
Appeals,  it  is  not  a  case  which  may  be  brought  there  by  certi- 
orari under  Sec.  240.  It  is  not  intended  that  these  two  modes  of 
exercising  appellate  authority  over  the  Circuit  Courts  of  Appeals, 
one  upon  appeal  or  writ  of  error  and  the  other  upon  cer- 
tiorari shall  be  co-existent  with  respect  to  any  case  or  class  of 
cases,  but  rather  that  the  former,  where  it  exists  at  all,  shall  be 
exclusive. ■ 

(b)  Decrees  of  the  Circuit  Court  of  Appeals  in  trademark 
cases  are  not  reviewable  by  appeal,  the  remedy  by  certiorari 
is  exclusive. 2 

(c)  Neither  appeal  nor  error  lies  to  review  a  judgment  and 
sentence  for  contempt,  the  remedy  by  certiorari  being  exclusive. 3 

(d)  A  decree  of  the  Circuit  Court  of  Appeals  in  an  admiralty 
case  can  be  reviewed  in  the  U.  S.  Supreme  Court  only  by  a  writ 
of  certiorari.4 

(e)  Certiorari  and  not  appeal  is  the  remedy  to  review  a 
judgment  of  the  Circuit  Court  of  Appeals  in  a  habeas  corpus 
case  directing  the  deportation  of  an  alien  woman. s 

(f)  Certiorari  and  not  error  is  the  proper  mode  to  review  a 
judgment  of  the  United  States  Circuit  Court  of  Appeals  in  a 
criminal  case.6 

1  Lau  Ow  Bew  v.  United  States,  144  U.  S.  47,  58,  36  L.  Ed.  340,  344,  12  Sup.  Ct. 
Rep.  517;  American  Construction  Co.  v.  Jacksonville  T.  &  K.  W.  R.  Co.,  148  U.  S. 
372,  385,  37  L.  Ed.  486, 491, 13  Sup.  Ct.  Rep.  758;  Forsyth  v.  Hammond,  166  U.  S. 
506,  513,  514,  41  L.  Ed.  1095,  1099,  17  Sup.  Ct.  Rep.  665;  United  States  v.  Beatty, 
et  al,  232  U.  S.  463,  34  Sup.  Ct.  Rep.  392,  58  L.  Ed.  686;  Richardson  v.  Shaw,  209 
U.  S.  365,  28  Sup.  Ct.  Rep.  512,  52  L.  Ed.  835. 

3  Street  &  Smith  v.  Atlas  Mfg.  Co.,  231  U.  S.  348,  353,  34  Sup.  Ct.  Rep.  73,  5S 
L.  Ed.  262;  Hutchinson  P.  &  Co.  v.  Loewy,  217  U.  S.  457,  30  Sup.  Ct.  Rep.  613,  54 
L.  Ed.  838. 

3  Gompers  v.  U.  S.,  233  U.  S.  604,  34  Sup.  Ct.  Rep.  693,  58  L.  Ed.  1115;  In  re 
Chetwood,  165  U.  [S.  443,  17  Sup.  Ct.  Rep.  385,  41  L.  Ed.  782;  In  re  Debs,  158 
U.  S.  573,  15  Sup.  Ct.  Rep.  900,  39  L.  Ed.  1095. 

<U.  S.  v.  Three  Friends,  166  U.  S.  2-5,  17  Sup.  Ct.  Rep.  495,  41  L.  Ed.  897. 

s  Lapine  v.  Williams,  232  U.  S.  78,  34  Sup.  Ct.  Rep.  196,  58  L.  Ed.  515. 

6  Cameron  v.  United  States,  231  U.  S.  710,  34  Sup.  Ct.  Rep.  244,  58  L. 
Ed.  448. 

(128) 


Ch.  VIII)  CERTIORARI  FROM   U.   S.    SUPREME  COURT  §§  20-21 

§  20.  Where  both  certiorari  and  writ  of  error  may  be  resorted  to. 

In  doubtful  cases  where  it  is  desirable  to  obtain  a  complete 
adjudication  upon  the  merits,  the  writ  of  error  and  certiorari 
may  be  employed. * 
§  21.  When  the  writ  of  certiorari  will  lie. 

(a)  "The  writ  of  certiorari  is  one  of  the  extraordinary  reme- 
dies, and  being  such  it  is  impossible  to  anticipate  what  excep- 
tional facts  may  arise  to  call  for  its  use." 2 

(b)  A  writ  of  certiorari  is  not  issued  as  a  matter  of  right. 
The  issuance  of  it  rests  in  the  discretion  of  the  Supreme  Court. 
It  is  granted  only  in  cases  of  gravity  and  importance.  It  is  a 
power  sparingly  exercised. 3 

(c)  The  writ  will  be  allowed  to  correct  excesses  of  jurisdiction 
and  in  furtherance  of  justice.4 

(d)  The  power  to  issue  writs  of  certiorari  is  sufficient  to  vest 
in  the  Supreme  Court  of  the  United  States  final  control  over 
litigation  in  all  Courts  of  Appeals.5 

(e)  It  will  be  issued  to  avoid  a  conflict  between  the  State 
Courts  and  Federal  Courts  of  Appeal. s 

(f)  Or,  if  the  subject  matter  affects  the  interest  of  this 
nation. s 

(g)  On  an  application  of   a   Russian  vice-consul,  certiorari 

1  Johnson  v.  Southern  Pac.  Co.,  196  U.  S.  1,  25,  25  Sup.  Ct.  Rep.  158,  49  L. 
Ed.  363. 

2Degge  v.  Hitchcock,  229  U.  S.  162,  36  Sup.  Ct.  [Rep.  639,  57  L.  Ed. 
1135. 

s  Hamilton  Brown  Shoe  Co.  v.  Wolf  Bros.  240  U.  S.  251,  36  Sup.  Ct.  269, 60  L.  Ed. 
629;  United  States  v.  Three  Friends,  166  U.  S.  1, 17  Sup.  Ct.  Rep.  495,  41  L.  Ed.  897; 
Forsyth  v.  Hammond,  166  U.  S.  506.  17  Sup.  Ct.  Rep.  665,  41  L.  Ed.  1095;  Ameri- 
can Construction  Company  v.  Jacksonville  T.  K.  W.  R.  Co.,  148  U.  S.  372, 13  Sup. 
Ct.  Rep.  158,  37  L.  Ed.  486;  Re  Lau  Ow  Bew,  141  U.  S.  583,  12  Sup.  Ct.  Rep.  43, 
35  L.  Ed.  868;  Re  Lau  Ow  Bew,  144  U.  S.  47,  12  Sup.  Ct.  Rep.  517,  36  L. 
Ed.  340. 

4  In  re  Chetwood,  165  U.  S.  443,  17  Sup.  Ct.  Rep.  385,  41  L.  Ed.  783;  In  re 
Sachs,  190  U.  S.  1,  23  Sup.  Ct.  Rep.  718,  47  L.  Ed.  933. 

s  Forsyth  v.  Hammond,  166  U.  S.  506,  17  Sup.  Ct.  Rep.  665,  41  L.  Ed. 
1095. 

9  (129) 


Ch.  VIII)  CERTIORARI  FROM   U.    S.    SUPREME  COURT  §  22 

was  allowed  to  review  an  order  discharging  a  deserted  seaman 
from  a  Russian  vessel. ■ 

(h)  Certiorari  may  be  granted  where  the  judges  of  the  U.  S. 
Court  of  Appeals  are  divided  upon  a  question  of  law. 2 

(i)  It  will  be  issued  to  insure  the  uniformity  of  the  law  where 
the  decisions  in  the  different  Circuit  Courts  of  Appeal  are  conflict- 
ing on  points  of  law. 3 

(j)  Certiorari  has  been  granted  in  patent  cases  where  the 
different  courts  of  appeal  have  rendered  conflicting  decisions  as 
to  the  validity  of  the  same  patent.4 

(k)  Certiorari  will  issue  in  a  case  which  was  heard  by  a  judge 
or  judges  who  were  disqualified  to  hear  it.5 

(1)  Where  the  jurisdiction  of  the  Circuit  Court  of  Appeals 
was  involved.6 

(m)  The  Supreme  Court  has  allowed  very  few  writs  of 
certiorari  in  criminal  cases. 

(n)  Certiorari  will  not  be  granted  where  the  only  difference  in 
the  result  would  be  to  affirm  without  prejudice. 7 

(o)  In  many  cases  it  was  granted  on  application  of  the  Govern- 
ment. 
§  22.  Effect  of  allowance  of  the  writ. 

The  allowance  of  the  writ  of  certiorari  suspends  the  opera- 
tion of  the  mandate  of  the  U.  S.  Circuit  Court  of  Appeals  and 
all  action  in  the  court  where  the  case  was  tried. 8 

1  Tucker  v.  Alexandroff,  183  U.  S.  424,  22  Sup.  Ct.  Rep.  195,  46  L.  Ed.  264. 

aDelk  v.  St.  Louis  R.  R.  Co.,  220  U.  S.  580,  31  Sup.  Ct.  Rep.  617,  55  L. 
Ed.  590. 

3  Carpenter  v.  Winn,  221  U.  S.  533,  31  Sup.  Ct.  Rep.  683,  55  L.  Ed.  842. 

i  Diamond  Rubber  Co.  v.  Consolidated  Rubber  Co.,  220  U.  S.  428,  31  Sup.  Ct. 
Rep.  444,  55  L.  Ed.  527. 

s  Cramp  &  Sons  v.  Int.  C.  M.  T.  Co.,  228  U.  S.  6-15,  33  Sup.  Ct.  Rep.  722,  57 
L.  Ed.  1003;  American  Const.  Co.  v.  Jacksonville  R.  R.  Co.,  148  U.  S.  372, 13  Sup. 
Ct.  Rep.  153,  37  L.  Ed.  486. 

6  Pennsylvania  Coal  Co.  v.  Cassett,  207  U.  S.  187,  28  Sup.  Ct.  Rep.  110,  52  L. 
Ed.  163. 

7  Smith  v.  Vulcan  Iron  Works,  165  U.  S.  518,  41  L.  Ed.  810. 

»  Louisville  &  N.  R.  R.  Co.  v.  Louisville  Trust  Co.,  78  Fed.  659. 

(130) 


Ch.  VIII)  CERTIORARI   FROM   U.    S.    SUPREME   COURT  §§23-24 

But  the  court  below  is  permitted  to  perfect  its  judgment  and 
grant  leave  to  make  a  remittitur. z 
§  23.  Mandate  on  certiorari. 

Upon  a  reversal  of  a  judgment  of  the  Court  of  Appeals  on 
certiorari,  the  Supreme  Court  of  the  United  States  may  in  its  dis- 
cretion remand  the  cause  to  that  court  instead  of  to  the  trial  court. 2 
§  24.  Refusal  of  writ — effect  of. 

A  denial  of  the  writ  is  not  equivalent  to  an  affirmance. 3 

1  Hovey  v.  McDonald,  109  U.  S.  157,  3  Sup.  Ct.  Rep.  136,  27  L.  Ed.  890. 

2  Lutcher  v.  Lumber  Co.,  217  U.  S.  257,  30  Sup.  Ct.  Rep.  505,  54  L.  Ed.  757. 

*  Hamilton  Brown  Shoe  Co.  v.  Wolf  Bros.,  240  U.  S.  251,  36  Sup.  Ct.  Rep.  60 
L.  Ed.  629. 


(131) 


Ch.  IX)      REVIEW  OF   DECISIONS   OF  HIGHEST   STATE   COURTS 


CHAPTER  IX 

Review  of  Decisions  of  the  Highest  Courts  of  the  State — Juris- 
diction of  the  Supreme  Court  over  State  Courts 


Sec. 
1. 


5. 

6. 

7. 

8. 

9. 
10. 
11. 
12. 

13. 

14. 

15. 
16. 


17. 


18. 
19. 


Sec. 
Method  of  review — by  writ  of  error      20. 

or  certiorari. 
When  either  error  or  certiorari  may      21. 

be  invoked. 

(a)  Validity  of  Federal  laws.  22. 

(b)  Validity  of  State  laws. 
Where    validity    of    a    law    is    not      23. 

challenged,      the      propriety      of 
Federal  claim  is  reviewable  only      24. 
by  certiorari. 

Distinction   between   writ   of   error 
and  certiorari.  25. 

The  Act  of  September  6,  1916. 

No  jurisdictional  amount  required.        26. 

Federal  law  controls  procedure.  27. 

Writ  of  error — by  whom  allowed. 

Procedure  indicated.  28. 

Procedure  on  certiorari. 

Time  for  suing  out  writ. 

Decisions    reviewable — final    deter- 
mination necessary. 

What  constitutes  a  final  adjudica- 
tion. 

When  reservation  in  decree  does  not 
affect  its  finality. 

When  a  decree  of  foreclosure  is  final. 

The  jurisdiction  of  the  U.  S.  Supreme      29. 
Court   not  affected   by   form    of 
judgment,  provided  it  is  final.  30. 

When  decision  not  reviewable. 

(a)  Order  in  chambers.  31. 

(b)  Remand  with  instructions. 

(c)  Reversal  for  further  proceed-      32. 

ings.  33. 

Moot  questions  not  reviewable. 
"Highest  State  Court"  defined. 

(132) 


When  an  inferior  court  may  be  so 

regarded. 
When     highest     court     refuses     to 

entertain  jurisdiction. 
Every  method  of  obtaining  review 

must  be  exhausted. 
In  New  York — to  which  court  writ 

addressed. 
Who  may  sue  out  writ  of  error. 

(a)  Limited  to  parties  to  record. 

(b)  Must  have  personal  interest. 
Who  must  be  named  as  plaintiffs  in 

error— joint  parties. 

When  interests  are  separate. 

Severing  the  record  —  practice  — 
notice. 

Raising  a  Federal  question — juris- 
dictional pre-requisite — method  of 
raising: 

(a)  By  an  adequate  specification 

or  an  appropriate  pleading. 

(b)  By  motion. 

(c)  By  exception. 

(d)  By    other    action,     showing 

Federal  claim  or  right 
presented  to   Court. 

Federal  right  must  be  positively 
asserted. 

Specific  section  of  statute  or  Con- 
stitution must  be  set  out. 

Confounding  the  Fifth  Amendment 
with  the  Fourteenth. 

Issue  of  law  must  be  definite. 

Federal  claim  cannot  be  spelled 
out  by  resort  to  judicial  know- 
ledge. 


Ch.  IX)      REVIEW  OF  DECISIONS   OF  HIGHEST   STATE  COURTS 


Sec.  Sec. 

34.  No  special  form  required  for  raising      56. 

Federal  question. 

35.  As  a  rule  Federal  question  must  be 

raised  in  Trial  Court. 

36.  Setting  up  Federal  claim  in  an  as- 

signment of  errors — when  proper. 

37.  First   raised  in   Appellate   Court —      57. 

when  seasonable. 

38.  Not  raised  in  highest  court  fatal. 

39.  Certificate   of   State    Chief   Justice 

insufficient  to  confer  jurisdiction.         58. 

40.  When    the    state    court    impliedly      59. 

passed  upon  Federal  claim.  60. 

41.  Petitions,  briefs,  and  assignment  of 

errors  insufficient  to  prove  ques- 
tion raised.  61. 

42.  Federal  question  raised  in  petition       62. 

for  rehearing. 

43.  Local    law    not    considered    except       63. 

when  controlling  Federal  question.       64. 

44.  What  the   decision   of   state   court       65. 

must  show. 

45.  Change  of   rule  by  recent   legisla-       66. 

tion.  67. 

46.  When    statement    in    state    court's 

opinion  insufficient.  68. 

47.  When  omission  to  refer  to  Federal 

question  not  fatal  to  a  review .  69. 

48.  IT.  S.  Supreme  Court  not  limited  to       70. 

opinion  of  state  court. 

49.  Misconstruction  of  Act  of  Congress       71. 

— the  record. 

50.  Frivolous  Federal  questions.  72. 

51.  Judgments     sustainable     on     non- 

Federal    ground — cannot    be    re-      73. 
viewed. 

52.  Example — laches  as  a  non-Federal      74. 

ground. 

53.  Rule    where    Federal    question    is      75. 

controlling.  76. 

54.  Damages  for  delay. 

55.  Review  of  findings  of  fact — general 

rule — findings    of    fact    are    not      77. 
reviewable. 


Exceptions  to  foregoing  rule: 

(a)  Unsupported  by  evidence. 

(b)  Law  and  fact  intermingled. 

(c)  Findings  not  specific. 

(d)  Findings  relating  to  service  of 

process. 
What    are    Federal    questions — the 

Fourteenth  Amendment. 

Challenging  the  constitutionality 

of  State  Statutes. 
Application  and  effect. 
Habeas  Corpus  from  state  court. 
Notes  on:  "Due  Process  of  Law." 

"Equal     Protection     of     the 

Law." 
Class  legislation  prohibited. 
Embraces     all     agencies     of    State 

including  the  Judiciary. 
Guaranties. 

Includes  the  State  Judiciary. 
Where  a  party  had  opportunity  to 

be  heard. 
No  due  process  if  without  notice. 
A  state  cannot  prevent  the  object  of 

due  process. 
"Due  process"  applied  to  judicial 

proceedings. 
Notice  necessary  before  judgment- 
Question    of    due    service    of    pro- 
cess. 
Supreme  Court  will  decide  whether 

due  process  denied. 
Service  of  process  on  foreign  cor- 
poration. 
"Due    process"    synonymous    with 

"the  law  of  the  land. " 
Due    process    as    used    in    Magna 

Charta. 
Substance,  not  form,  governs. 
Notes  on:"  Impairing  Obligations 

of  a  Contract."    Governed  by 

theory  of  case. 
What  is   sufficient   to   show   claim 

under  contract  clause. 


(133) 


Ch.  IX)     REVIEW   OF  DECISIONS   OF  IIIGIIEST   STATE   COURTS         §§  1~2 

Sec.  Sec. 

78.  Supreme  Court  of  U.  S.  not  bound      85.  Judgments   of    the    same    jurisdic- 

by  finding  of  state  court.  tion. 

79.  Ordinances:  86.  Navigable  waters  of  the  IT.  S. 

(a)  An  ordinance  has  the  force  of      87.  Federal  and  state  legislation. 

law — effect  on  contracts.  88.  Federal  land  titles. 

(b)  Ordinances     as     contracts —      89.  Questions  under  the  Banking  Laws 

when   ordinance   is   volun-  of  the  United  States. 

tarily  accepted.  90.  Questions  under  patent  laws,  when 

(c)  When  void  under  state  law.  validity  not  involved,  no  Federal 

80.  Charters  held  inviolable.  question. 

81.  Claims  under  Federal  Statutes.  91.  Mining    claims  —  a    Federal    ques- 

82.  Notes     on     "Full     Faith     and  tion. 

Credit."     Constitutional    provi-       92.  Questions    of    res    adjudicata    not 
sions.  Federal. 

83.  Failure    to    give    effect    to    Federal      93.  Claim  under  the  Bankruptcy  Laws 

judgment.  of  the  U.  S. 

84.  Force  to  be  given  Federal  judgment.       94.  No  writ  in  forma  pauperis. 

§  i .  Method  of  review — by  writ  cf  error  or  certiorari. 

A  final  judgment  at  law  or  a  decree  in  equity  rendered  by  the 
highest  court  cf  a  state  is  reviewable  in  the  Supreme  Court  of  the 
United  States  pursuant  to  the  Act  of  September  6,  1916,  Chapter 
448,  Paragraph  2,  (see  §  5  following),  either  by  writ  of  error  or 
certiorari  and  never  by  appeal. 
§  2.  When  either  error  or  certiorari  may  be  invoked. 

Under  the  said  Act  of  September  6,  19 1G,  the  aggrieved 
party  has  the  choice  of  selecting  the  mode  of  review,  either  by 
writ  of  error  or  certiorari,  but  only  in  the  following  classes 
of  cases : 

(a)  where  the  validity  of  a  treaty  or  statute  of,  or  an  au- 
thority exercised  under  the  United  States  was  drawn  in  ques- 
tion and  the  decision  was  in  favor  of  or  against  their  validity; 
and 

(b)  where  the  question  of  the  validity  of  a  statute  of,  or  an 
authority  exercised  under  any  state  on  the  ground  of  their  being 
repugnant  to  the  Constitution,  treaties,  or  laws  of  the  United 
States  was  drawn  in  question  and  the  decision  was  either  for  ©f 
agai»st  their  validity. 

(134) 


Ch.  IX)       REVIEW  OF  DECISIONS   OF  HIGHEST   STATE  COURTS      §§  3-3 

§  3.  "Where  validity  of  a  law  is  not  challenged,  the  propriety  cf 
Federal  claim  is  reviewable  only  by  certiorari. 

Where  any  title,  right,  privilege,  or  immunity  is  claimed  under 
the  Constitution  or  any  treaty  or  statute  of,  or  commission  held  or 
authority  exercised  under  the  United  States,  and  the  decision  of 
the  highest  court  of  the  State  is  either  in  favor  of  or  against  the 
title,  right,  privilege,  or  immunity  especially  set  up  or  claimed  by 
either  party  under  such  constitution,  treaty,  statute,  commission, 
or  authority,  the  right  to  review  such  judgment  is  limited  to  a 
proceeding  by  certiorari. 

Act  September  6,  1916,  Chap.  448,  U  2. 

§  4.  Distinction  between  writ  of  error  and  certiorari. 

The  cardinal  difference  between  the  two  modes  of  procedure 
is  this: 

Where  a  Federal  question  was  properly  raised  in  the  record  a 
writ  of  error  may  be  sued  out  in  the  classes  of  cases  above  indi- 
cated as  a  matter  of  right ;  whereas  certiorari  is  a  discretionary 
writ  and  is  allowed  only  in  exceptional  and  extraordinary  cases, 
mainly  to  settle  questions  of  law  upon  which  there  is  a  conflict  of 
decisions  or  where  the  question  involved  is  of  great  public 
importance.  (See  Certiorari,  Chap.  VIII.) 
§  5.  The  Act  of  September  6, 1916. 

The  Act  is  as  follows: 

"A  final  judgment  or  decree  in  any  suit  in  the  highest  court  of  a  State  in  which 
a  decision  in  the  suit  could  be  had,  where  is  drawn  in  question  the  validity  of  a 
treaty  or  statute  of,  or  an  authority  exercised  under  the  United  States,  and  the 
decision  is  against  their  validity ;  or  where  is  drawn  in  question  the  validity  of  a 
statute  of,  or  an  authority  exercised  under  any  State,  on  the  ground  of  their 
being  repugnant  to  the  Constitution,  treaties,  or  laws  of  the  United  States,  and 
the  decision  is  in  favor  of  their  validity,  may  be  re-examined  and  reversed  or 
affirmed  in  the  Supreme  Court  upon  a  writ  of  error.  The  writ  shall  have  the 
same  effect  as  if  the  judgment  or  decree  complained  of  had  been  rendered  or 
passed  in  a  court  of  the  United  States.  The  Supreme  Court  may  reverse,  modify, 
or  affirm  the  judgment  or  decree  of  such  State  court,  and  may,  in  its  discretion, 
award  execution  or  remand  the  same  to  the  court  from  which  it  was  removed  by 
the  writ. 

(135) 


Ch.  IX)     REVIEW  OF  DECISIONS  OF  HIGHEST   STATE  COURTS        §§  6~8 

It  shall  be  competent  for  the  Supreme  Court,  by  certiorari  or  otherwise,  to 
require  that  there  be  certified  to  it  for  review  and  determination  with  the  same 
power  and  authority  and  with  like  effect  as  if  brought  up  by  writ  of  error,  any 
cause  wherein  a  final  judgment  or  decree  has  been  rendered  or  passed  by  the 
highest  court  of  a  State  in  which  a  decision  could  be  had,  where  is  drawn  in 
question  the  validity  of  a  treaty  or  statute  of,  or  an  authority  exercised  under 
the  United  States,  and  the  decision  is  in  favor  of  their  validity;  or  where  is 
drawn  in  question  the  validity  of  a  statute  of,  or  an  authority  exercised  under 
any  State,  on  the  ground  of  their  being  repugnant  to  the  Constitution,  treaties, 
or  laws  of  the  United  States,  and  the  decision  is  against  their  validity;  or  where 
any  title,  right,  privilege,  or  immunity  is  claimed  under  the  Constitution,  or  any 
treaty  or  statute  of,  or  commission  held  or  authority  exercised  under  the  United 
States,  and  the  decision  is  either  in  favor  of  or  against  the  title,  right,  privilege, 
or  immunity  especially  set  up  or  claimed,  by  either  party,  under  such  Constitu- 
tion, treaty,  statute,  commission,  or  authority." 

(Jud.  Code,  §  237,  as  amended,  Act  Dec.  23,  1914,  c.  2,  and  Act  Sept.  6, 1916, 
c.44S,§2.) 

§  6.  No  jurisdictional  amount  required. 

The  jurisdictional  amount  required  in  cases  of  appeals  and 
writs  of  error  from  the  judgments  and  decrees  of  the  courts  of  the 
United  States  has  no  application  to  writs  of  error  from  State 
Courts  in  which  class  of  cases  a  review  may  be  had  regardless  of 
the  amount  involved.1 
§  7.  Federal  law  controls  procedure. 

Section  1003  of  the  Revised  Statutes  of  the  U.  S.  provides  that 
"writs  of  error  from  the  Supreme  Court  of  the  U.  S.  to  a  State 
Court  in  cases  authorized  by  law,  shall  be  issued  in  the  same 
manner,  and  under  same  regulations,  and  shall  have  the  same 
effect  as  if  the  judgment  or  decree  complained  of  had  been 
rendered  or  passed  in  a  Court  of  the  U.  S. " 
§  8.  Writ  of  error — by  whom  allowed. 

A  writ  of  error  from  the  Supreme  Court  of  the  United  States 
to  the  highest  courts  of  a  State  may  be  allowed  by  a  justice  of  the 
United  States  Supreme  Court  or  by  the  Chief  Justice  of  the  State 
Court  in  which  the  judgment  or  decree  was  rendered,  but  not  by 
an  associate  justice  of  such  State  Court.  If  the  judgment  was 
rendered  by  a  court  having  no  chief  justice,  then  it  may  be 

»  The  Habana,  175  U.  S.  G33,  20  Sup.  Ct.  Rep.  290,  44  L.  Ed.  322. 
(136) 


Ch.  IX)     REVIEW  OF  DECISIONS  OF  HIGHEST   STATE  COURTS      §§  9-13 

allowed  by  the  judge  of  the  court  in  which  the  judgment  or 
decree  was  entered.    An  order  allowing  the  writ  is  necessary. z 
§  9.  Procedure  indicated. 

Except  for  the  difference  in  the  method  of  allowance  of  the 
writ  of  error  as  pointed  out  in  the  preceding  section,  the  practice 
of  obtaining  a  review  of  a  judgment  or  decree  of  the  highest 
court  of  a  state  follows  the  procedure  in  writs  of  error  from  judg- 
ments of  Federal  courts. .  A  petition  for  writ  of  error  with  proper 
assignment  of  errors,  a  bond  and  a  citation  together  with  an  order 
for  allowance  of  the  writ  constitute  the  set  of  papers  required  * 
for  presentation  to  the  Judge  or  Justice  allowing  the  writ.  (For 
forms  of  petition,  assignment  of  errors,  bond,  and  citation, 
etc.,  see  appendix,  and  see  also  Chap.  XV.  §§  17-48  of  this 
book.) 
§  10.  Procedure  on  certiorari. 

The  procedure  on  certiorari  to  the  U.  S.  Supreme  Court 
is  exactly  the  same  as  upon  application  to  review  a  judgment  of 
the  U.  S.  Circuit  Court  of  Appeals.     (For  forms,  see  appendix, 
and  see  "  Certiorari, "  Chap.  VIII.  of  this  book.) 
§  ii.  Time  for  suing  out  writ  of  error  or  certiorari. 

A  writ  of  error  or  certiorari  to  review  a  judgment  or  decree  of 
the  highest  court  of  a  state  must  be  sued  out  within  three  months 
from  the  date  of  entry  of  the  judgment  or  decree. 2 
§  12.  Decisions  reviewable — final  determination  necessary. 

In  order  to  obtain  a  review  by  writ  of  error,  the  judgment  or 
decree  of  the  highest  court  of  a  state  must  be  final  in  its  nature. 3 
§  13.  What  constitutes  a  final  adjudication. 

A  final  judgment  or  decree,  within  the  meaning  of  the  act 
regulating  appeals  or  writs  of  error  to  the  Supreme  Court  of  the 
United  States,  is  one  that  terminates  the  litigation  on  the  merits, 

1  Section  299  Rev.  Stat,  of  the  U.  S.;  Havnor  v.  New  York,  170  U.  S.,  408, 42  L. 
Ed.  1087,  18  Sup.  Ct.  Rep.  631;  Northwestern  Union  Packet  Co.  v.  Home  Ins.  Co., 
154  U.  S.  588,  20  L.  Ed.  463,  14  Sup.  Ct.  1168. 

*  Section  1228a,  Act  Sept.  6, 1916,  c.  448,  §  6.     See  Certiorari,  Chap.  VIII. 

3  Sect.  237  of  the  Federal  Judicial  Code. 

(137) 


Ch.  IX)     REVIEW  OF  DECISIONS  OF  HIGHEST  STATE  COURTS    §§  1-1-16 

so  that  in  case  of  affirmance  the  court  below  will  have  nothing  to 
do  but  to  execute  the  judgment  or  decree  it  originally  rendered. r 
§  14.  When  reservation  in  decree  does  not  affect  its  finality. 

And  the  rule  is  the  same  where  the  rights  of  the  parties  are 
substantially  adjusted  although  something  still  remains  to  be 
done. 3 
§  15.  When  a  decree  of  foreclosure  is  final. 

A  decree  of  foreclosure  proceedings  is  final  when  it  fixes  the 
amount  of  the  debt,  directs  a  sale,  or  adjudges  the  rights  of  the 
different  claimants.3 

§  16.  The  jurisdiction  of  the  U.  S.  Supreme  Court  not  affected  by 
form  of  judgment,  provided  it  is  final. 

It  is  enough  for  the  jurisdiction  of  the  Supreme  Court  of 
the  United  States  that  there  was  a  final  judgment  entered  by  the 
highest  court  of  the  state.  Whenever  the  highest  court  of  the 
state  by  any  form  of  decision  affirms  or  denies  the  validity  of  a 
judgment  of  an  inferior  court,  over  which  it  by  law  can  exercise 

1  Mt.  Vernon  Woodberry  Cotton  Co.  v.  Alabama  I.  P.  Co.,  240  U.S.  30, 36  Sup.  Ct. 
Rep.  234,  GO  L.  Ed.  507;  Detroit  &  M.  R.  Co.  v.  Michigan  R.  R.  Commission,  240  U.  S. 
564,  36  Sup.  Ct.  Rep.  424, 60  L.  Ed.  802;  Rio  Grande  W.  R.  Co.  v.  Stringham,  239  U.  S. 
44,  36  Sup.  Ct.  Rep.  5,  60  L.  Ed.  136;  Illinois  ex  rel.  Gersch  v.  Chicago,  226  U.  S.  451, 
57  L.  Ed.  295;  Louisiana  Navigation  Co.  v.  Oyster  Commission,  226  U.  S.  99, 57  L.  Ed. 
138;  Chesapeake  &  O.  R.  R.  Co.  v.  McCabe,  213  U.  S.  207,  53  L.  Ed.  765;  McLaughlin 
v.  Hallowell,  228  U.  S.  278,  57  L.  Ed.  835;  Missouri  &  K.  I.  Co.  v.  Olathe,  222  U.  S. 
185,  56  L.  Ed.  155;  Schlosser  v.  Hemphill,  198  U.  S.  173,  49  L.  Ed.  1001,  25  Sup.  Ct. 
Rep.  654;  Great  Western  Tele.  Co.  v.  Burnham,  162  U.  S.  339,  40  L.  Ed.  991,  16 
Sup.  Ct.  Rep.  850;  Ex  parte  Norton,  108  U.  S.  237,  2  Sup.  Ct.  Rep.  390, 27  L.  Ed.  709; 
Wurts  v.  Hoagland,  105  U.  S.  701,  15  Otto  701,  26  L.  Ed.  1109;  Bostwick  v.  Brinker- 
hoff,  106  U.  S.  3,  16  Otto  3,  27  L.  Ed.  73;  Grant  v.  Phoenix  Mutual  Life  Ins.  Co.,  106 
U.  S.  429,  16  Otto  429,  1  Sup.  Ct.  414,  27  L.  Ed.  237;  St.  Louis  I.  M.  &  S.  R.  Co.,  v. 
Southern  Exp.  Co.,  108  U.  S.  24,  27  L.  Ed.  638,  2  Sup.  Ct.  Rep.  6;  Weston  v.  Charles- 
ton, 2  Pet.  449,  7  L.  Ed.  4S0;  Buell  v.  Van  Ness,  8  Wheat.  312,  5  L.  Ed.  624. 

>  Cedar  Rapids  Gas  Light  Co.  v.  Cedar  Rapids,  223  U.  S.  655, 32  Sup.  Ct.  Rep.  389, 
56  L.  Ed.  594. 

s  In  re  Norton,  108  U.  S.  237,  27  L.  Ed.  709,  2  Sup.  Ct.  Rep.  490;  Green  v.  Fisk, 
103  U.  S.  518,  13  Otto  518,  26  L.  Ed.  485;  North  Carolina  R.  R.  Co.  v.  Swasey,  23 
Wall.  405,  23  L.  Ed.  136;  Bronson  v.  R.  R.  Co.  2  Black  524,  17  L.  Ed.  359;  Whiting 
v.  Bank  of  the  U.  S.,  13  Pet.  6,  10  L.  Ed.  33;  Ray  v.  Law,  3  Cranch  179,  2  L.  Ed. 
404. 

(138) 


Ch.  IX)    REVIEW   OF  DECISIONS  OF  HIGHEST   STATE   COURTS    §§  17-20 

appellate  authority,  the  jurisdiction  of  the  Supreme  Court  of  the 
United  States  to  review  such  decision,  if  it  involve  a  Federal 
question,  will  upon  a  proper  proceeding  attach. T 
§  17.  When  decision  not  reviewable. 

(a)  An  order  of  a  judge  in  chambers  on  habeas  corpus  is  not 
a  final  judgment  of  the  court. 2 

(b)  Where  cause  is  remanded  with  directions  to  enter  judgment 
writ  will  not  lie  until  the  judgment  is  entered  in  accordance  with 
direction  as  appears  in  the  record. 3 

(c)  When  the  highest  court  of  a  state  reverses  a  judgment  of 
the  lower  court  and  remands  it  for  further  proceedings,  a  writ  of 
error  cannot  be  sued  out  from  the  United  States  Supreme  Court 
until  the  highest  court  of  the  state  has  again  affirmed  the 
judgment. 4 

§  18.  Moot  questions  not  reviewable. 

See  Chapter  II.,  §§  43-46,  on  moot  questions. 
§  19.  "  Highest  state  court " — defined. 

By  the  term,  "the  highest  court  of  a  state,"  is  meant  the 
highest  court  to  which,  under  the  laws  of  the  state,  the  case 
could  have  been  appealed  and  which  passed  on  the  case. s 
§  20.  When  an  inferior  court  may  be  so  regarded. 

Therefore  a  judgment  of  an  inferior  court  is  of  equal  dignity 
for  the  purposes  of  review  with  that  of  the  highest  court  of  the 

1  Mt.  Vernon  Woodberry  Cotton  Duck  Co.  v.  Alabama  Interstate  Power  Co. 
240  U.  S.  30,  36  Sup.  Ct.  Rep.  234,  60  L.  Ed.  507;  Williams  v.  Bruffy,  102  U.  S.  255, 
26  L.  Ed.  135;  Stevens  v.  Griffith,  111  U.  S.  50,  28  L.  Ed.  348,  4  Sup.  Ct.  Rep.  283; 
Virginia  Coupon  cases,  114  U.  S.  310,  29  L.  Ed.  199. 

a  Clarke  v.  McDade,  165  U.  S.  108,  41  L.  Ed.  673,  17  Sup.  Ct.  Rep.  284; 
McKnight  v.  James,  155  U.  S.  685,  39  L.  Ed.  310,  15  Sup.  Ct.  Rep.  248;  Wheeling 
&  B.  Bridge  Co.  v.  Wheeling  Bridge  Co.,  138  U.  S.  287,  34  L.  Ed.  967,  11  Sup.  Ct. 
Rep.  301. 

s  Union  M.  L.  Ins.  Co.  v.  Kirchoff,  160  U.  S.  374,  40  L.  Ed.  461, 16  Sup.  Ct.  Rep. 
318;  Rice  v.  Sanger,  144  U.  S.  197, 36  L.  Ed.  403, 12  Sup.  Ct.  Rep.  664;  Commissioners 
v.  Lucas,  93  U.  S.  108,  23  L.  Ed.  822. 

«  Coe  v.  Armour  Fertilizer  Works,  237  U.  S.  413,  59  L.  Ed.  1027,  35  Sup.  Ct.  Rep. 
625. 

s  Stratton  v.  Stratton,  239  U.  S.  55,  36  Sup.  Ct.  Rep.  26,  60  L.  Ed.  142. 

(139) 


Ch.  IX)     REVIEW  OF  DECISIONS   OF   HIGHEST   STATE  COURTS    §§  21-23 

state  if  no  method  of  review  is  provided  from  such  court  to  a 

higher  court  in  the  particular  class  of  cases. * 

§  21.  When  highest  court  refuses  to  entertain  jurisdiction. 

And  the  same  rule  applies  to  a  case  where  an  application  was 
made  to  the  highest  court  of  the  state  for  an  appeal  or  writ  of 
error  and  the  latter  refused  it;  or,  if  after  allowing  the  same,  the 
higher  court  declined  to  entertain  jurisdiction.  In  either  case, 
the  writ  of  error  should  be  addressed  to  the  inferior  court. 2 
§  22.  Every  method  of  obtaining  review  must  be  exhausted. 

Although  the  judgment  of  an  intermediate  appellate  court  is 
made  final  by  statute,  yet  where  a  discretionary  power  to  review 
the  judgment  exists  in  the  highest  court  of  the  State,  it  is  impera- 
tive that  the  remedy  provided  by  the  local  law  be  first  exhausted 
before  an  application  for  a  writ  of  error  is  made  to  the  Supreme 
Court  of  the  United  States. 3 
§  23.  In  New  York — to  which  Court  Writ  Addressed. 

In  view  of  the  fact  that  the  reviewing  courts  in  the  State  of 
New  York  after  judgment  do  not  retain  the  record,  but  remit  it 
to  the  court  below,  it  has  been  held  that  a  writ  of  error  to  review 
a  judgment  of  the  highest  court  of  that  state  may  be  addressed 
to  the  inferior  court  having  actual  custody  and  control  of  the 
record,  and  not  to  the  Court  of  Appeals. 4 

1  Mullen  v.  Western  Union  Beef  Co.,  173  U.  S.  116,  43  L.  Ed.  635,  19  Sup.  Ct. 
Rep.  404;  Tinsley  v.  Anderson,  171  U.  S.  101,  43  L.  Ed.  91,  18  Sup.  Ct.  Rep.  805; 
Newport  Light  Co.  v.  Newport,  151  U.  S.  527,  38  L.  Ed.  259,  14  Sup.  Ct.  Rep. 
429;  Fisher  v.  Perkins,  122  U.  S.  522,  30  L.  Ed.  1192,  7  Sup.  Ct.  Rep.  1227. 

2  San  Antonio  and  A.  P.  R.  Co.  v.  Wagner,  241  U.  S.  476,  36  Sup.  Ct.  Rep.  626, 
60  L.  Ed.  1110;  Kanawha  &  Michigan  Railway  Co.  v.  Kerse,  239  U.  S.  576,  60  L.  Ed. 
448,  36  Sup.  Ct.  Rep.  174;  Bcrgeman  v.  Backer,  157  U.  S.  655,  39  L.  Ed.  845,  15 
Sup.  Ct.  Rep.  727;  Lane  v.  Wallace,  104  U.  S.  77,  26  L.  Ed.  703. 

3  Stratton  v.  Stratton,  239  U.  S.  55,  36  Sup.  Ct.  Rep.  26,  60  L.  Ed.  142; 
Fisher  v.  Perkins,  122  U.  S.  522,  30  L.  Ed.  1192,  7  Sup.  Ct.  Rep.  1227;  Mullen  v. 
Western  Union  Beef  Co.,  173  U.  S.  116,  43  L.  Ed.  635,  19  Sup.  Ct.  Rep.  404;  Western 
Union  Tel.  Co.  v.  Crovo,  220  U.  S.  364;  Norfolk  Turnpike  Co.  v.  Virginia,  225  U.  S. 
264,  32  Sup.  Ct.  Rep.  264,  56  L.  Ed.  1082;  St.  Louis,  San  Francisco  Ry.  Co.  v.  Seale, 
229  U.  S.  156,  33  Sup.  Ct/Rep.  651,  57  L.  Ed.  1129. 

<  Green  v.  Buskirk,  3  Wall.  448,  18  L.  Ed.  245;  Gelston  v.  Hoyt,  3  Wheat.  246, 
4  L.  Ed.  396. 

(140) 


Ch.  IX)     REVIEW  OF  DECISIONS   OF  HIGHEST   STATE  COURTS    §§  24-27 

And  this  is  the  rule  for  other  jurisdictions  where  the  same 
condition  exists.1 

The  writ  of  error  may  be  addressed  either  to  the  highest  court 
or  inferior  court  in  the  State  of  New  York.    The  better  practice 
seems  to  be  to  direct  the  writ  to  the  court  which  has  the  record 
in  its  custody  and  control. 2 
§  24.  Who  may  sue  out  writ  of  error. 

(a)  Only  parties  to  the  record  in  the  court  below  may  sue  out 
or  be  made  defendants  to  a  writ  of  error. 3 

(b)  And  such  parties  must  have  a  personal,  as  distinguished 
from  an  "official"  interest  in  the  result  of  the  litigation.4 

§  25.  "Who  must  be  named  as  plaintiffs  in  error — joint  parties. 

Where  the  interests  of  the  parties  are  joint,  the  writ  must  be 
sued  out  in  the  name  of  all  joint  plaintiffs  or  joint  defendants,  or 
the  writ  will  be  dismissed.5 
§  26.  When  interests  are  separate. 

But  where  a  judgment  or  decree  is  several  both  in  form  and 
substance,  a  writ  of  error  may  be  sued  out  by  any  party  to  the 
record  to  protect  his  own  interests. 6 
§  27.  Severing  the  record — practice— notice. 

If  one  of  several  co-parties  desires  to  sue  out  a  writ  of  error, 
and  the  others  refuse  to  join  in  same,  he  may  give  notice  to  such 

1  Stanley  v.  Schwalby,  162  U.  S.  255,  40  L.  Ed.  960, 16  Sup.  Ct.  Rep.  754;  Roths- 
child v.  Knight,  184  U.  S.  334,  46  L.  Ed.  573,  22  Sup.  Ct.  Rep.  391;  Wedding  v. 
Meyler,  192  U.  S.  573,  48  L.  Ed.  570,  24  Sup.  Ct.  Rep.  322. 

8  Atherton  v.  Fowler,  91  U.  S.  146, 23  L.  Ed.  265. 

s  Payne  v.  Niles,  20  How.  219,  15  L.  Ed.  895;  Bayard  v.  Lombard,  9  How.  530,  13 
L.  Ed.  245;  In  re  Cockcroflt,  104  U.  S.  578, 26  L.  Ed.  856;  Indiana  S.  R.  Co.  v.  Liver- 
pool L.  &  G.  Ins.  Co.,  109  U.  S.  168, 3  Sup.  Ct.  Rep.  108,  27  L.  Ed.  895;  South  Caro- 
lina v.  Weseley,  155  U.  S.  542, 15  Sup.  Ct.  Rep.  230, 39  L.  Ed.  254 ;  Georgia  v.  Jessup, 
106  U.  S.  458,  1  Sup.  Ct.  Rep.  363,  27  L.  Ed.  216. 

-» Stewart  v.  Kansas  City,  239  U.  S.  14,  36  Sup.  Ct.  Rep.  15,  60  L.  Ed.  120;  Smith 
v.  Indiana,  191  U.  S.  138,  48  L.  Ed.  125,  24  Sup.  Ct.  Rep.  51;  Marshall  v.  Dye,  231 
U.  S.  250,  34  Sup.  Ct.  Rep.  92,  58  L.  Ed.  206. 

s  Hardee  v.  Wilson,  146  U.  S.  179,  13  Sup.  Ct.  Rep.  39,  36  L.  Ed.  933. 

6  Cox  v.  United  States,  6  Pet.  172,  8  L.  Ed.  359;  Gilfillan  v.  McKee,  159  U.  S. 
303,  40  L.  Ed.  161,  16  Sup.  Ct.  Rep.  6;  Todd  v.  Daniel,  16  Pet.  521,  10  L.  Ed.  1054; 
German  v.  Mason,  12  Wall.  259,  20  L.  Ed.  392. 

(141) 


Ch.  IX)     REVIEW  OF  DECISIONS  OF  HIGHEST  STATE   COURTS    §§  2S~30 

co-party  of  his  intention  to  do  so,  whereupon  the  writ  may  be 

issued  as  if  such  parties  had  joined  in  the  writ. ■ 

§  28.  Raising  a  Federal  question — jurisdictional  pre-requisite. 

In  order  to  confer  upon  the  Supreme  Court  of  the  United 
States  jurisdiction  to  review  a  judgment  or  decree  of  a  state  court, 
by  reason  of  the  denial  by  a  state  court  of  any  title,  right,  pri- 
vilege, or  immunity  claimed  under  the  Constitution  or  any  treaty 
or  statute  of  the  United  States,  it  must  appear  from  the  record 
itself  that  such  title,  right,  privilege,  or  immunity  was  "specially 
set  up  or  claimed. "     The  method  of  raising  is : 

(a)  By  an  adequate  specification  or  an  appropriate  pleading, 

(b)  By  motion, 

(c)  By  exception, 

(d)  By  other  action,  being  made  part  of  the  record  or  in  some 
other  mode  permissible  under  the  local  practice,  at  the  proper 
time  and  in  the  proper  way,  showing  that  the  Federal  claim  or 
right  was  presented  to  the  Court.2 

§  29.  Federal  right  must  be  positively  asserted. 

The  assertion  of  the  Federal  right  must  be  made  unmistakably, 
and  not  left  to  mere  inference.3 
§  30.  Specific  section  of  statute  or  Constitution  must  be  set  out. 

And  the  Federal  statute  or  section  of  the  Constitution  relied 

1  Masterson  v.  Henderson,  10  Wall.  418, 19  L.  Ed.  954;  Dowd  v.  Russell,  14  Wall. 
402.     For  form  of  notice  and  mode  of  procedure  see  Appendix,  Form  No.  53. 

2  Int.  Harvester  Co.  v.  Missouri,  234  U.  S.  199,  34  Sup.  Ct.  Rep.  199,  58  L.  Ed. 
1276;  Atchinson  T.  &  S.  F.  Ry.  Co.  v.  Robinson,  233  U.  S.  173,  58  L.  Ed.  901 ;  Adams 
v.  Russell,  229  U.  S.  353, 57  L.  Ed.  1224;  El  Paso  &  S.  R.  Co.  v.  Eichel,  226  U.  S.  590, 
57  L.  Ed.  369;  Ferris  v.  Frohman,  223  U.  S.  424,  56  L.  Ed.  492;  Louisville  &  N.  R. 
Co.  v.  Melton,  218  U.  S.  36,  54  L.  Ed.  921,  36  Sup.  Ct.  Rep.  57;  Mutual  Life  Ins. 
Co.  of  New  York  v.  McGrew,  188  U.  S.  308,  23  Sup.  Ct.  Rep.  375,  47  L.  Ed.  480; 
Capital  City  Dairy  Co.  v.  Ohio,  183  U.  S.  238,  248,  22  Sup.  Ct.  Rep.  120, 46  L.  Ed. 
171 ;  Loeb  v.  Columbia  Twp.,  179  U.  S.  472, 21  Sup.  Ct.  Rep.  174,  45  L.  Ed.  280. 

3  Kansas  City  Western  R.  R.  Co.  v.  Adow,  240  U.  S.  51,  36  Sup.  Ct.  Rep.  252, 
60  L.  Ed.  520;  Southern  R.  R.  Co.  v.  Lloyd,  239  U.  S.  496,  36  Sup.  Ct.  Rep.  210, 
60  L.  Ed.  402;  Mutual  Life  Ins.  Co.  of  New  York  v.  McGrew,  188  U.  S.  308,  23  Sup. 
Ct.  Rep.  375,  47  L.  Ed.  4S0;  F.  G.  Oxley  Stave  Co.  v.  Butler  County,  166  XI.  S.  648, 
41  L.  Ed.  1149,  17  Sup.  Ct.  Rep.  709. 

(142) 


Ch.  IX)     REVIEW  OF  DECISIONS   OF  HIGHEST   STATE  COURTS    §§  31-33 

upon  should  be  stated  with  particularity,  or  the  writ  of  error 

ma}?-  be  dismissed  for  want  of  jurisdiction.1 

§  31.  Confounding  the  Fifth  Amendment  with  the  Fourteenth. 

The  Fifth  Amendment  to  the  Constitution  of  the  United 
States  relates  exclusively  to  procedure  in  the  Federal  courts,  and 
the  state  courts  are  not  bound  to  give  it  effect.  The  Fourteenth 
Amendment  and  not  the  Fifth  controls  the  action  of  the  State 
and  its  courts. 2 

Nor  are  the  state  courts  bound  by  the  procedure  laid  down 
by  the  seventh  amendment.3 
§  32.  Issue  of  lav/  must  be  definite. 

A  definite  issue  as  to  the  validity  of  the  statute  or  the  posses- 
sion of  the  right  must  be  distinctly  deducible  from  the  record 
before  the  State  court  can  be  held  to  have  disposed  of  such  a 
Federal  question  by  its  decision. 4 

§  33.  Federal  claim  cannot  be  spelled  out  by  resort  to  judicial 
knowledge. 

Jurisdiction  may  be  maintained  where  a  definite  issue  as  to 
the  possession  of  the  Federal  right  is  distinctly  deducible  from  the 
record  and  necessarily  disposed  of,  but  this  cannot  be  made  out 
by  resort  to  judicial  knowledge.5 

1  Harding  v.  Illinois,  196  U.  S.  78,  25  Sup.  Ct.  Rep.  176,  49  L.  Ed.  394;  Mutual 
Life  Ins.  Co.  v.  McGrew,  188  U.  S.  291,  47  L.  Ed.  480,  23  Sup.  Ct.  Rep.  375;  Hooker 
v.  Los  Angeles,  188  U.  S.  314,  23  Sup.  Ct.  Rep.  395,  47  L.  Ed.  487;  Home  for  Incur- 
ables v.  New  York,  187  IT.  S.  155, 23  Sup.  Ct.  Rep.  84,  47  L.  Ed.  117;  Erie  R.  R.  Co. 
v.  Purdy,  1S5  U.  S.  148,  22  Sup.  Ct.  Rep.  605,  46  L.  Ed.  847;  Oxley  Stave  Co.  v. 
Butler  Co.,  166  U.  S.  648,  41  L.  Ed.  1149,  17  Sup.  Ct.  Rep.  709. 

2  Ensign  v.  Pennsylvania,  227  U.  S.  592,  33  Sup.  Ct.  Rep.  592,  57  L.  Ed.  658. 

i  St.  Louis  and  Kansas  City  Land  Co.  v.  Kansas  City,  241  IT.  S.  419,  36  Sup.  Ct. 
Rep.  647,  60  L.  Ed.  1072. 

4  Consolidated  Turnpike  Co.  v.  Norfolk  &  O.  V.  R.  Co.,  228  U.  S.  596,  57  L.  Ed. 
982,  33  Sup.  Ct.  Rep.  596;  Powell  v.  Brunswick  County,  150  IT.  S.  433,  14  Sup.  Ct. 
Rep.  166,  37  L.  Ed.  1134. 

s  Osborne  v.  Gray,  241  IT.  S.  16, 36  Sup.  Ct.  Rep.  486, 60  L.  Ed.  865 ;  Mutual  Life  Ins. 
Co.  of  New  York  v.  McGrew,  188  U.  S.  308, 23  Sup.  Ct.  Rep.  375, 47  L.  Ed.  480;  Powell 
v.  Brunswick  County,  150  U.  S.  433,  37  L.  Ed.  1134,  14  Sup.  Ct.  Rep.  166;  Mountain 
View  Min.  &  Mil.  Co.  v.  McFadden,  180  IT.  S.  533, 45  L.  Ed.  656, 21  Sup.  Ct.  Rep.  4S8; 
Arkansas  v.  Kansas  &  T.  Coal  Co.,  183  U.  S.  185, 46  L.  Ed.  144, 22  Sup.  Ct.  Rep.  47. 

(143) 


Ch.  IX)     REVIEW  OF   DECISIONS   OF   IIIGIIEST   STATE   COURTS    §§  34r-36 

§  34.  No  special  form  required  for  raising  Federal  question. 

No  particular  form  of  words  or  phrase  in  which  a  claim  of 
Federal  rights  must  be  asserted  in  a  State  court  has  ever  been 
declared  necessary  by  the  Supreme  Court  of  the  United  States.1 
§  35.  As  a  rule  Federal  question  must  be  raised  in  trial  court. 

The  proper  time  to  raise  a  Federal  question  is  in  the  trial 
court.  If  the  highest  court  of  the  State  declines  to  pass  upon  the 
Federal  point  because  not  raised  in  time  or  in  accordance  with  the 
local  practice,  the  Supieme  Court  of  the  United  States  will  decline 
to  take  jurisdiction  of  the  case.  But  it  is  otherwise  if  the  highest 
court  of  the  State  actually  passes  upon  the  Federal  claim  although 
defectively  raised. 2 

The  rule  is  universal  that  nothing  which  occurred  in  the 
progress  of  the  trial  can  be  assigned  as  error,  unless  it  was  brought 
to  the  attention  of  the  court  below,  and  passed  upon,  directly  or 
indirectly. 3 

§  36.  Setting  up  Federal  claim  in  an  assignment  of  errors — when 
proper. 

Where  a  Federal  claim  is  set  up  for  the  first  time  in  an 
assignment  of  error  and  the  highest  court  of  the  State  passes 

1  Miles  Salt  Co.  v.  Board  of  Coram.,  239  U.  S.  478,  36  Sup.  Ct.  Rep.  264,  60  L. 
Ed.  392;  Green  Bay,  etc.,  v.  Patten  Paper  Co.,  172  U.  S.  58,  19  Sup.  Ct.  Rep.  97, 
43  L.  Ed.  364;  Kaukauna  v.  Green  Bay,  142  U.  S.  54,  12  Sup.  Ct.  Rep.  178,  35 
L.  Ed.  1004;  Powell  v.  Brunswick  County,  150  U.  S.  433,  14  Sup.  Ct.  Rep.  160,  37 
L.  Ed.  1134;  C.  B.  &  Q.  R.  R.  v.  Chicago,  166  U.  S.  226,  17  Sup.  Ct.  Rep.  581,  41  L. 
Ed.  979. 

2  Mutual  Life  Ins.  Co.  of  New  York  v.  McGrew,  188  U.  S.  308,  23  Sup.  Ct.  Rep. 
375,  47  L.  Ed.  480;  Dill  v.  Ebbey,  229  U.  S.  199,  57  L.  Ed.  1148;  Hulbcrt  v.  Chicago, 
202  U.  S.  275,  26  Sup.  Ct.  Rep.  617,  50  L.  Ed.  1026;  Cincinnati  Packet  Co.  v.  Green 
Bay,  200  U.  S.  179,  26  Sup.  Ct.  Rep.  208,  50  L.  Ed.  428;  Marvin  v.  Trout,  199  U.  S. 
212,  26  Sup.  Ct.  Rep.  31,  50  L.  Ed.  157;  Hardin  v.  Illinois  196  U.  S.  73,  25  Sup. 
Ct.  Rep.  176,  49  L.  Ed.  394;  Layton  v.  Missouri,  187  U.  S.  356,  23  Sup.  Ct.  Rep. 
137,  47  L.  Ed.  214;  Jacobi  v.  Alabama,  187  U.  S.  133,  23  Sup.  Ct.  Rep.  48, 47  L.  Ed. 
106;  Erie  R.  R.  Co.  v.  Purdy,  185  U.  S.  148,  46  L.  Ed.  847,  22  Sup.  Ct.  Rep.  605; 
Columbia  Water  Power  Co.  v.  Street  Ry.  Co.  172  U.  S.  475;  Oxley  v.  Butler  County, 
166  TJ.  S.  132 ;  Spies  v.  Illinois,  123  U.  S.  131  Sub  nom. ;  Ex  parte  Spies  31  L.  Ed.  80, 
8  Sup.  Ct.  Rep.  21. 

J  Wood  v.  Weimer,  104  TJ.  S.  786,  795,  26  L.  Ed.  779. 

(144) 


Ch.  IX)     REVIEW  OF  DECISIONS  OF  HIGHEST   STATE  COURTS    §§  37-39 

on  same  in  its  opinion,  it  is  equivalent  for  the  purposes  of  juris- 
diction, as  if  the  point  had  been  originally  made  in  the  trial 
court.  * 
§  37.  First  raised  in  Appellate  Court — when  seasonable. 

Although  a  Federal  question  was  not  presented  by  the  plead- 
ings, and  was  not  raised  in  the  trial  court,  nevertheless,  if  on 
appeal  to  the  highest  court  of  the  State  such  question  was  pre- 
sented and  the  court  held  that  a  Federal  question  was  made 
before  it  according  to  its  practice,  and  proceeded  to  determine  it, 
the  Supreme  Court  of  the  United  States  will  regard  the  question 
as  duly  made  and  will  entertain  jurisdiction  to  review  the 
same. 2 
§  38.  Not  raised  in  highest  court  fatal. 

Points  not  made  in  the  highest  courts  of  the  State  will  not  be 
considered  by  the  United  States  Supreme  Court. 3 
§  39.  Certificate  of  state  Chief  Justice  insufficient  to   confer 
jurisdiction. 

The  fact  that  the  Chief  Justice  of  a  state  court  allowed  the 
writ  of  error,  or  certified  the  Federal  question,  is  not  of  itself 

1  San  Jose"  Land  and  Water  Co.  v.  San  Jose*  Ranch  Co.,  189  U.  S.  177,  23  Sup.  Ct. 
487,  47  L.  Ed.  765;  Cincinnati  Packet  Co.  v.  Green  Bay,  200  U.  S.  182,  26  Sup.  Ct. 
Rep.  208,  50  L.  Ed.  428. 

»  Mallencrodt  Works  v.  Jones,  238  U.  S.  41,  35  Sup.  Ct.  Rep.  671,  59  L.  Ed.  1192; 
North  Carolina  Railroad  Co.  v.  Zachary,  232  U.  S.  248,  58  L.  Ed.  581;  Miederich  v. 
Lauenstein,  232  U.  S.  236,  58  L.  Ed.  584;  Atchinson  T.  &  S.  F.  R.  Co.  v.  Sowers,  213 
U.  S.  55, 62, 53  L.  Ed.  695,  29  Sup.  Ct.  Rep.  397;  Chambers  v.  Baltimore  &  O.  R.  Co., 
207  U.  S.  142,  148,  52  L.  Ed.  143, 146,  28  Sup.  Ct.  Rep.  34;  Montana  ex  rel.  Haire  v. 
Rice,  204  U.  S.  291,  299,  51  L.  Ed.  490,  494,  27  Sup.  Ct.  Rep.  281;  Arrowsmith  v. 
Harmoning,  118U.  S.  194,  6  Sup.  Ct.  Rep.  1023,.30L.  Ed.  243;  San  Jos6L.  &  W.  Co. 
v.  San  Jose  R.  Co.,  189  U.  S.  177,  179,  180,  47  L.  Ed.  765,  766,  23  Sup.  Ct.  Rep. 
487;  Erie  Railroad  Co.  v.  Purdy,  185  U.  S.  148,  22  Sup.  Ct.  Rep.  605,  46  L.  Ed.  847; 
Rothschild  v.  Knight,  184  U.  S.  334,  22  Sup.  Ct.  391,  46  L.  Ed.  573 ;  Sulley  v.  Ameri- 
can National  Bank,  178  U.  289,  20  Sup.  Ct.  935, 44  L.  Ed.  1072;  Mayer  v.  Richmond, 
172  U.  S.  82,  19  Sup.  Ct.  Rep.  106,  43  L.  Ed.  374. 

3  Bullen  v.  Wisconsin,  240  U.  S.  625, 36  Sup.  Ct.  Rep.  473, 60  L.  Ed.  830;  Chicago 
B.  &  Q.  R.  R.  Co.  v.  R.  R.  Comm.  of  Wisconsin,  237  U.  S.  220,  59  L.  Ed.  926;  Illinois 
Central  R.  R.  Co.  v.  Mulberry  Hill  Coal  Co.  238  U.  S.  275,  35  Sup.  Ct.  Rep.  760,  59 
L.  Ed.  1306. 

10  (145) 


Ch.  IX)     REVIEW  OF  DECISIONS   OF  HIGHEST   STATE  COURTS    §§  40~42 

sufficient  to  show  that  a  Federal  question  was  involved.    Such 
fact  must  appear  from  the  record  itself. z 

§  40.  When  the  state    court   impliedly  passed   upon   Federal 
claim. 

There  is,  however,  a  well-defined  exception  to  this  rule,  as 
where  the  record  by  necessary  intendment,  shows  that  a  con- 
stitutional or  Federal  question  is  in  the  case,  and  that  the  State 
court  could  not  have  reached  its  decision  without  deciding  the 
Federal  question.2 

§  41.  Petitions,  briefs,  and  assignment  of  errors  insufficient  to 
prove  question  raised. 

The  petition  for  writ  of  error,3  the  briefs  of  counsel,4  and 
the  assignment  of  errors,5  form  no  part  of  the  record  for  the 
purpose  of  proving  that  the  Federal  question  was  duly  raised  in  the 
court  below.  This  must  be  shown  by  the  pleadings  or  motion, 
ruling,  or  some  other  proceeding. 
§  42.  Federal  question  raised  in  petition  for  rehearing. 

A  Federal  claim  is  not  properly  raised  when  made  for  the 
first  time  in  a  petition  for  rehearing;  or  in  the  petition  for  writ 
of  error;  or  in  the  briefs  of  counsel  not  made  a  part  of  the 
record. 6 

But  when  the  court  below  entertained  the  petition  for  rehear- 

1  Hulbert  v.  Chicago,  202  U.  S.  275,  280,  26  Sup.  Ct.  Rep.  617,  50  L.  Ed.  1026; 
Marvin  v.  Trout,  199  U.  S.  212,  223,  26  Sup.  Ct.  Rep.  31,  50  L.  Ed.  157;  House  of 
Incurables  v.  New  York,  187  U.  S.  155,  23  Sup.  Ct.  Rep.  84,  47  L.  Ed.  117;  Columbia 
Water  Power  Co.  v.  Street  Railway  Co.,  172  U.  S.  475, 487, 488, 19  Sup.  Ct.  Rep.  247, 
43  L.  Ed.  521. 

aKelsey  v.  Filt,  207  U.  S.  50,  28  Sup.  Ct.  Rep.  43-60,  52  L.  Ed.  95;  Wedding  v. 
Meyers,  192  U.  S.  573,  24  Sup.  Ct.  Rep.  322,  48  L.  Ed.  570;  San  Jose"  Land  &  Water 
Co.  v.  San  Jose\  189  U.  S.  177,  26  Sup.  Ct.  Rep.  208,  50  L.  Ed.  448. 

3  California  Powder  Works  v.  Davis,  151  U.  S.  389, 14  Sup.  Ct.  Rep.  350,  S8  L.  Ed. 
206. 

4  Sayward  v.  Denny,  158  U.  S.  180,  39  L.  Ed.  941,  15  Sup.  Ct.  Rep.  777. 
s  Fowler  v.  Lamson,  1G4  U.  S.  252,  41  L.  Ed.  424, 17  Sup.  Ct.  Rep.  112. 

6  St.  Louis  &  S.  F.  R.  Co.  v.  Shepherd,  240  U.  S.  240,  36  Sup.  Ct.  Rep.  274,  60  L. 
Ed.  622;  Mutual  Life  Ins.  Co.  v.  McGrew,  188  U.  S.  308,  23  Sup.  Ct.  Rep.  375,  47 
L.  Ed.  480;  Zadig  v.  Baldwin,  166  U.  S.  488,  41  L.  Ed.  1088,  17  Sup.  Ct.  Rep.  639; 
Sayward  v.  Denny,  158  U.  S.  180,  39  L.  Ed.  941, 15  Sup.  Ct.  Rep.  777. 

(146) 


Ch.  IX)     REVIEW  OF  DECISIONS  OF  HIGHEST   STATE  COURTS   §§  43-44 

ing  and  specially  passed  upon  the  Federal  questions  it  will  be 
regarded  as  raised  in  proper  time. r 

§  43.  Local  law  not  considered  except  when  controlling  Federal 
question. 

Questions  relating  to  local  law  will  not  be  considered  on  a 
writ  of  error. 2 

Although  the  cause  of  action  relied  upon  is  based  upon  the 
Federal  Constitution  or  statutes,  nevertheless,  on  writ  of  error 
from  the  State  courts  the  power  to  review  is  controlled  by  Section 
237  of  the  Judicial  Code,  and  the  Court  will  not  consider  incidental 
questions  not  Federal  in  character.3 

But  so  far  as  the  judgment  of  the  State  court  against  the 
validity  of  and  authority  under  the  United  States  necessarily 
involves  a  decision  of  a  question  of  local  law,  it  will  be  reviewed 
by  the  United  States  Supreme  Court  whether  that  question  de- 
pends upon  the  Constitution,  laws,  or  treaties  of  the  United  States 
or  upon  the  local  law,  or  upon  principles  of  general  jurisprudence. 4 
§  44.  What  the  decision  of  State  court  must  show. 

The  general  rule  is  that  it  must  clearly  and  unmistakably 
appear  from  the  opinion  of  the  highest  court  of  the  State  that  the 

1  Consol.  Turnpike  v.  Norfolk,  etc.,  Ry.  Co.,  228  U.  S.  326, 334,  32  Sup.  Ct.  Rep. 
326,  57  L.  Ed.  857 ;  Forbes  v.  State  Council  of  Virginia,  216  U.  S.  396, 399, 30  Sup.  Ct. 
Rep.  396,  54  L.  Ed.  534;  Mutual  Life  Ins.  Co.  v.  McGrew,  188  U.  S.  291,  311,  23  Sup. 
Ct.  Rep.  375,  47  L.  Ed.  480 ;  Home  for  Incurables  v.  New  York,  187  U.  S.  308, 23  Sup. 
Ct.  Rep.  84,  47  L.  Ed.  117;  Swerungen  v.  St.  Louis,  185  U.  S.  38,  46  L.  Ed.  799, 22 
Sup.  Ct.  Rep.  569;  Mallet  v.  North  Carolina,  181  U.  S.  589,  45  L.  Ed.  1015,  21  Sup- 
Ct.  Rep.  730;  Pim  v.  St.  Louis,  165  U.  S.  273,  17  Sup.  Ct.  Rep.  322,  41  L.  Ed.  714; 
Loeber  v.  Schroeder,  149  U.  S.  580,  585,  13  Sup.  Ct.  934,  37  L.  Ed.  856. 

s  Missouri  ex  rel.  Hill  v.  Dockerey,  191  U.  S.  165,  48  L.  Ed.  133,  24  Sup.  Ct.  Rep. 
53;  Hammond  v.  Johnston,  142  U.  S.  73,  35  L.  Ed.  941,  12  Sup.  Ct.  141;  Henderson 
Bridge  Co.  v.  Henderson,  141  U.  S.  679, 35  L.  Ed.  900, 12  Sup.  Ct.  Rep.  114;  Robinson 
v.  Iron  Railway  Co.,  135  U.  S.  522, 10  Sup.  Ct.  Rep.  907, 34  L.  Ed.  277. 

3  St.  Louis  I.  M.  &  S.  R.  Co.  v.  McWhirter,  229  U.  S.  265,  275,  57  L.  Ed.  1179, 
1185,  33  Sup.  Ct.  Rep.  858;  Rev.  Stat.  709  (237,  Judicial  Code,  36  Stat,  at  L.  1156, 
Chap.  231,  Comp.  Stat.  1913,  1214.);  U.  Seaboard  Air  Line  R.  Co.  v.  Duvall,  225 
U.  S.  477,  56  L.  Ed.  1171,  32  Sup.  Ct.  Rep.  790;  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Taylor, 
210  U.  S.  281,  52  L.  Ed.  1061,  28  Sup.  Ct.  Rep.  616,  21  Am.  Neg.  Rep.  464. 

4  Kansas  City  &  Southern  Ry.  Co.  v.  Albers  Comm.  Co.,  223  U.  S.  573,  56  L.  Ed. 
556,  32  Sup.  Ct.  Rep.  316. 

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Ch.  IX)     REVIEW  OF  DECISIONS  OF  HIGHEST  STATE  COURTS   §§  45-47 

Federal  question  was  raised  and  actually  decided  and  that  the 
decision  upon  the  Federal  question  was  essential  to  the  judgment 
rendered. x 
§  45.  Change  of  rule  by  recent  legislation. 

Prior  to  the  amendment  of  Sect.  237  of  the  Federal  Judicial 
Code,  the  decisions  all  held  that  in  order  to  obtain  a  review  by 
writ  of  error  the  plaintiff  in  error  must  show  that  the  Federal 
claim  was  decided  adversely  to  him,  but  these  decisions  no  longer 
apply,  the  rule  having  been  changed  by  said  amendment,  which 
now  permits  a  review  of  a  case  although  the  decision  of  the  State 
court  was  in  favor  of  the  validity  of  the  Federal  claim. 
§  46.  When  statement  in  State  court's  opinion  insufficient. 

The  fact  that  the  State  court  in  its  opinion  stated  that  it  had 
"considered  all  of  the  questions "  does  not  show  that  it  had  passed 
upon  any  Federal  question.2 

§  47.  When  omission  to  refer  to  Federal  question  not  fatal  to  a 
review. 

But  when  the  Federal  question  was  properly  presented  and 
necessarily  controls  the  determination  of  the  case,  the  appellate 
jurisdiction  of  the  United  States  Supreme  Court  cannot  be  defeated 
merely  because  the  State  court  chose  to  put  its  decision  upon  some 
matter  of  local  law. 3 

«  Heim  v.  McCall,  239  U.  S.  175, 36  Sup.  Ct.  Rep.  78,  60  L.  Ed.  206 ;  Haire  v.  Rice, 
204  U.  S.  291,  298,27  Sup.  Ct.  Rep.  291,  51  L.  Ed.  490;  Harding  v.  Illinois,  196  U.  S. 
78,  85-86,  25  Sup.  Ct.  Rep.  176,  49  L.  Ed.  394;  San  Jose"  Land  &  Water  Co.  v.  San 
Jose"  Ranch  Co.,  189  U.  S.  177, 23  Sup.  Ct.  Rep.  487,  47  L.  Ed.  765;  Columbia  Water 
Power  Co.  v.  Columbia^Street  Railway  Co.,  172  U.  S.  475,  19  Sup.  Ct.  Rep.  247,  43 
L.  Ed.  521;  Clarke  v.  McDade,  165  U.  S.  168, 172, 17  Sup.  Ct.  Rep.  284,  41  L.  Ed. 
673;  Fowler  v.  Lamson,  164  U.  S.  252, 17  Sup.  Ct.  Rep.  112, 41  L.  Ed.  424;  Missouri 
P.  R.  Co.  v.  Fitzgerald,  160  U.  S.  556,  576  (40:  536,  540),  16  Sup.  Ct.  Rep.  389, 
40  L.  Ed.  536;  California  Powder  Works  v.  Davis,  151  U.  S.  389-393  (38:  206,  207), 
14  Sup.  Ct.  Rep.  350,  38  L.  Ed.  206;  Eustis  v.  Bolles,  150  U.  S.  361  (37:  111),  14  Sup. 
Ct.  Rep.  131,  37  L.  Ed.  1111. 

»  Consol.  Turnpike  v.  Norfolk,  etc.,  228  U.  S.  326,  32  Sup.  Ct.  Rep.  326,  57  L.  Ed. 
857;  Forbes  v.  State  Council,  216  U.  S.  396,  30  Sup.  Ct.  Rep.  396,  54  L.  Ed.  534. 

3  Gaar  Scott  &  Co.  v.  Shannon,  223  U.  S.  468,  at  471,  32  Sup.  Ct.  Rep.  468,  56  L. 
Ed.  510;  West  Chicago  R.  R.  Co.  v.  Chicago,  201  U.  S.  506,  26  Sup.  Ct.  Rep.  518,  50 
L.  Ed.  845;  C.  B.  &  Q.  R.  R.  Co.  v.  People,  200  U.  S.  561,  26  Sup.  Ct.  Rep.  341,  50  L. 

(148) 


Ch.  XI)     REVIEW  OF  DECISIONS  OF  HIGHEST  STATE  COURTS   §§  48-49 

If  the  judgment  of  affirmance  necessarily  denied  Federal 
rights  specially  set  up,  a  writ  of  error  will  lie,  although  the 
highest  court  of  the  State,  in  its  opinion,  did  not  expressly  refer 
to  the  Federal  Constitution.1 

§  48.  United  States  Supreme  Court  not  limited  to  opinion  of 
State  court. 

In  passing  upon  a  question  of  jurisdiction,  the  United  States 
Supreme  Court  is  not  limited  to  the  opinion  of  the  State  court, 
but  may  consider  the  entire  record.2 
§  49.  Misconstruction  of  Act  of  Congress — the  record. 

It  is  not  always  necessary  that  the  record  of  the  proceedings 
of  the  highest  court  should  state  in  terms  a  misconstruction  by  that 
court  of  an  Act  of  Congress.  It  is  enough  that  it  is  an  inference 
of  law  that  the  highest  court  did  in  fact  misconstrue  an  Act  of 
Congress.3 

See  §  28  et  seg>  of  this  chapter. 

Ed.  596;  Attorney-Gen.  of  the  State  of  Michigan  v.  Lowry,  199  U.  S.  233,  26  Sup. 
Ct.  Rep.  27,  50  L.  Ed.  167;  American  Exp.  Co.  v.  State  of  Iowa,  196  U.  S.  133,  25 
Sup.  Ct.  Rep.  182,  49  L.  Ed.  417;  C.  B.  &  Q.  R.  R.  Co.  v.  State  of  Nebraska,  170  U. 
S.  57,  18  Sup.  Ct.  Rep.  513,  42  L.  Ed.  948;  C.  &  B.  Q.  R.  R.  Co.  v.  Chicago,  166  U. 
S.  226,  17  Sup.  Ct.  Rep.  581,  41  L.  Ed.  979;  Chapman  v.  Goodnow,  123  U.  S.  540, 
8  Sup.  Ct.  Rep.  211,  31  L.  Ed.  235. 

x  West  Chicago  St.  Ry  Co.  v.  City  of  Chicago,  201  U.  S.  507, 26  Sup.  Ct.  Rep.  518, 
50  L.  Ed.  845;  Green  Bay  &  Miss.  Canal  Co.  v.  Patten  Paper  Co.,  172  U.  S.  58,  19 
Sup.  Ct.  97,  43  L.  Ed.  364;  C.  B.  &  Q.  R.  R.  Co.  v.  Chicago,  166  U.  S.  226, 17  Sup. 
Ct.  Rep.  581, 41  L.  Ed.  979;  Roby  v.  Colehour,  146  U.  S.  153, 13  Sup.  Ct.  47, 36  L.  Ed. 
922;  Chapman  v.  Goodnow,  123  U.  S.  540,  8  Sup.  Ct.  Rep.  211, 31  L.  Ed.  235. 

'  L.  R.  &  W.  Co.  v.  Behrman,  235  U.  S.  164,  35  Sup.  Ct.  Rep.  62,  59  L.  Ed.  175; 
Carondelet  Canal  &  Nav.  Co.  v.  Louisiana,  233  U.  S.  362,  376, 68  L.  Ed.  1001, 1006, 34 
Sup.  Ct.  Rep.  627;  Louisiana  ex  rel.  Hubert  v.  New  Orleans,  215  U.  S.  170, 175,  54  L. 
Ed.  144,  147,  30  Sup.  Ct.  Rep.  40;  Houston  &  T.  C.  R.  Co.  v.  Texas,  177  U.  S.  66, 
76,  77,  44  L.  Ed.  673,  679,  680,  20  Sup.  Ct.  Rep.  545;  McCullough  v.  Virginia,  172 
U.  S.  102, 116,  43  L.  Ed.  382,  387, 19  Sup.  Ct.  Rep.  134. 

3  Water  Power  Co.  v.  Street  Railway  Co.,  172  U.  S.  475,  488,  19  Sup.  Ct.  Rep. 
247,  43  L.  Ed.  521;  Railroad  Company  v.  Maryland,  21  Wall.  456,  466;  Neilson  v. 
Lagow,  12  How.  98,  109;  Jones  National  Bank  v.  Yates,  240  U.  S.  241,  36  Sup.  Ct. 
429,  60  L.  Ed.  788;  Thomas  v.  Taylor,  224  U.  S.  73,  32  Sup.  Ct.  Rep.  403,  56  L.  Ed. 
673 ;  Grand  Trunk  Western  R.  R.  Co.  v.  Lindsey,  223  U.  S.  42,  58  L.  Ed.  838,  34  Sup. 
Ct.  Rep.  581. 

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Ch.  IX)     REVIEW  OF  DECISIONS   OF  HIGHEST   STATE  COURTS   §§  50-51 

§  50.  Frivolous  Federal  questions. 

The  assertion  of  a  Federal  right  must  not  be  frivolous  or  wholly 
without  foundation.  It  must  at  least  have  fair  color  of  support, 
for  otherwise  an  utterly  baseless  Federal  right  might  be  set  up  or 
claimed  in  almost  any  case,  and  the  jurisdiction  of  the  United 
States  Supreme  Couit  invoked  merely  for  purposes  of  delay. x 

The  existence  of  jurisdiction  to  review  the  judgments  and 
decrees  of  the  highest  court  of  the  State  depends  not  merely  upon 
form,  but  upon  substance;  that  is,  in  this  class  of  cases,  as  in 
others,  the  general  rule  controls  that  power  to  review  cannot 
arise  from  the  mere  assertion  of  a  formal  right  when  such  asserted 
right  is  so  wanting  in  foundation  and  so  unsubstantial  as  to  be 
devoid  of  all  merit  and  frivolous. 2 

Where  a  Federal  question  does  exist,  the  writ  of  error  will 
not  be  dismissed  as  frivolous,  even  when  the  case  is  foreclosed 
by  former  decisions,  when  an  analysis  of  these  decisions  is 
necessary. 3 

§  51.  Judgments  sustainable  on  non-Federal  ground— cannot  be 
reviewed. 

When  a  record  shows  that  two  questions  were  presented  by 

1  Stewart  v.  Kansas  City,  239  IT.  S.  14,  36  Sup.  Ct.  Rep.  15,  60  L.  Ed.  120;  Weber 
v.  Fried,  239  U.  S.  325,  36  Sup.  Ct.  Rep.  131,  60  L.  Ed.  308;  Parker  v.  McClain,  Ad. 
Sheets  U.  S.  Supreme  Court,  June  15,  1916;  Catholic  Missions  v.  Missoula  County, 
200  IT.  S.  118;  Empire  State  Mining  Co.  v.  Hanley,  198  U.  S.  292,  25  Sup.  Ct.  Rep. 
691,49  L.  Ed.  1056;  Bonin  v.  Gulf  Co.,  198JJ.  S.  115,  25  Sup.  Ct.  Rep.  608,  49 
L.  Ed.  970;  Newburyport  Water  Co.  v.  Newburyport,  193  IT.  S.  561,  24  Sup.  Ct. 
Rep.  553,  48  L.  Ed.  795;  Spencer  v.  Duplan  Silk  Co.,  191  U.  S.  526,  24  Sup.  Ct. 
Rep.  174,  48  L.  Ed.  287;  Arbuckle  v.  Blackburn,  191  U.  S.  405,  24  Sup.  Ct.  Rep. 
148;  48  L.  Ed.  239;  Sawyer  v.  Piper,  189,  U.  S.  154,  156,  47  L.  Ed.  757,  758,  23  Sup. 
Ct.  Rep.  633;  New  Orleans  Waterworks  Co.  v.  Louisiana,  185  IT.  S.  336,  46  L.  Ed. 
936,  941,  22  Sup.  Ct.  Rep.  691;  Wilson  v.  North  Carolina,  169  U.  S.  586,  595,  42 
L.  Ed.  865,  871,  18  Sup.  Ct.  Rep.  435;  Hamblin  v.  Western  Land  Co.  147  IT.  S. 
531,  37  L.  Ed.  267, 13  Sup.  Ct.  Rep.  353. 

3  Seaboard  Air  Line  v.  Padgett,  236  U.  S.  668,  59  L.  Ed.  777,  35  Sup.  Ct.  Rep. 
481.  But  compare  with  Kansas  City  &  Southern  Ry.  v.  Albers  Comm.  Co.,  223 
IT.  S.  573,  32  Sup.  Ct.  Rep.  316,  56  L.  Ed.  556. 

3  Louisville  &  N.  R.  R.  Co.  v.  Melton,  218  IT.  S.  36,  54  L.  Ed.  921,  30  Sup.  Ct. 
Rep.  676. 

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Ch.  IX)     REVIEW   OF  DECISIONS  OF  HIGHEST   STATE  COURTS    §§  52-55 

the  pleadings — one  Federal  and  one  non-Federal — and  that  the 
judgment  below  rested  upon  a  decision  of  the  non-Federal  ques- 
tion, the  Supreme  Court  of  the  United  States  has  no  jurisdiction 
to  review  that  judgment.1 
§  52.  Example — laches  as  a  non-Federal  ground. 

The  ground  of  laches  is  broad  enough  to  sustain  a  decree  of  a 
State  court,  and  therefore,  eiror  would  not  lie  to  the  Supreme 
Court  of  the  United  States. 2 
§  53.  Rule  where  Federal  question  is  controlling. 

But  the  Supreme  Court  of  the  United  States  is  not  absolutely- 
bound  by  that  rule,  for  to  admit  that  the  authority  to  review  the 
action  of  a  state  court  where  it  has  decided  a  Federal  question 
can  be  rendered  unavailing  by  a  suggestion  "that  the  court  below 
may  have  rested  its  judgment  on  a  non-Federal  ground,"  could 
simply  amount  to  depriving  that  court  of  all  power  to  review 
Federal  questions  if  only  a  party  chose  to  make  such  sug- 
gestion. 3 
§  54.  Damages  for  delay. 

Damages  for  delay  in  suing  out  a  frivolous  writ  of  error  may 
be  imposed. 4 

§  55.  Review  of  findings  of  fact — general  rule,  findings  of  fact 
are  not  reviewable. 

On  error  to  a  state  court  the  U.  S.  Supreme  Court  in  cases 

1  Wood  v.  Chesborough,  228  U.  S.  672,  57  L.  Ed.  1018;  Consolidated  Turnpike 
Co.  v.  Norfolk  &  O.  V.  R.  Co.,  228  U.  S.  596,  57  L.  Ed.  982;  Southern  Pac.  R.  R.  Co. 
v.  Schuyler,  227  U.  S.  601,  57  L.  Ed.  662;  Missouri  &  K.  R.  R.  Co.  v.  Olathe,  222 
U.  S.  187,  56  L.  Ed.  156;  Gaar,  S.  &  Co.  v.  Shannon,  223  U.  S.  468,  56  L.  Ed.  570, 32 
Sup.  Ct.  Rep.  236;  Berea  College  v.  Kentucky,  211  U.  S.  45;  Eustis  v.  Belles,  150 
U.  S.  361,  14  Sup.  Ct.  Rep.  131,  37  L.  Ed.  1111;  Adams  County  v.  Burlington,  etc., 
R.  Co.  112  U.  S.  123,  5  Sup.  Ct.  Rep.  77,  28  L.  Ed.  678. 

2  Preston  v.  Chicago,  226  IT.  S.  447,  57  L.  Ed.  293;  Rutland  R.  R.  Co.  v.  Central 
Vermont  R.  R.  Co.,  159  U.  S.  630,  640,  16  Sup.  Ct.  Rep.  113,  40  L.  Ed.  284. 

3  St.  Louis  &  Iron  Mountain  Ry.  v.  McWhirter,  229  U.  S.  265,  at  276,  quoting 
Neilson  v.  Lagow,  12  How.  98;  Rogers  v.  Hennepin  County,  240  U.  S.  184,  36  Sup. 
Ct.  Rep.  265,  60  L.  Ed.  594. 

4  Deming  v.  Carlisle  Packing  Co.,  226  U.  S.  102,  33  Sup.  Ct.  Rep.  102,  57  L. 
Ed.  140. 

(151) 


Ch.  IX)     REVIEW   OF  DECISIONS   OF  HIGHEST   STATE  COURTS  §  56 

at  law  or  in  equity  cannot  reexamine  the  evidence,  and,  when 
the  facts  are  found  below,  is  concluded  by  such  finding. ■ 
§  56.  Exceptions  to  foregoing  rule. 

But  to  this  rule  there  are  the  following  exceptions: 

(a)  Where  a  Federal  right  has  been  denied  as  the  result  of  a 
finding  shown  by  the  record  to  be  without  evidence  to  support  it. 2 

(b)  Where  a  conclusion  of  law  as  to  a  Federal  right  and 
findings  of  fact  are  so  intermingled  as  to  make  it  necessary,  in 
order  to  pass  upon  the  Federal  question,  to  analyze  the  facts.3 

(c)  Where  the  record  contains  only  a  general  or  ultimate 
conclusion  of  fact,  which  is  set  forth  in  the  decree  of  the  State 
court,  which  is  so  interwoven  with  the  question  of  law  as  to  be  in 
substance  a  decision  of  the  latter. 4 

(d)  In  addition  to  the  above  summary,  it  has  been  held  that 
the  United  States  Supreme  Court  will  review  the  facts  to  ascer- 
tain whether  in  a  particular  case  there  was  due  service  upon  an 

1  Interstate  Amusement  Co.  v.  Albert,  239  U.  S.  560,  36  Sup.  Ct.  Rep.  168,  60  L. 
Ed.  439;  Carlson  v.  Washington,  234  U.  S.  103;  Egan  v.  Hart,  165  U.  S.  188,  194, 
41  L.  Ed.  680,  17  Sup.  Ct.  Rep.  300;  Stanley  v.  Schwalby,  162  U.  S.  278,  40  L.  Ed. 
968,  16  Sup.  Ct.  Rep.  754;  Bartlett  v.  Lockwood,  160  U.  S.  368,  40  L.  Ed.  460,  16 
Sup.  Ct.  Rep.  334;  Dower  v.  Richards,  151  U.  S.  658,  38  L.  Ed.  305, 14  Sup.  Ct.  Rep. 
452. 

2  lones  National  Bank  v.  Yates,  240  U.  S.  541,  36  Sup.  Ct.  Rep.  429,  60  L.  Ed. 
7S8;  Interstate  Amusement  Co.  v.  Albert,  239  U.  S.  560,  36  Sup.  Ct.  Rep.  168,  60 
L.  Ed.  439. 

3  Northern  Pac.  R.  R.  Co.  v.  North  Dakota,  236  U.  S.  585;  Wood  v.  Chesborough, 
228  U.  S.  672,  678,  57  L.  Ed.  1018,  1021,  33  Sup.  Ct.  Rep.  706;  Creswill  v.  Grand 
Lodge  K.  P.  225  U.  S.  246,  261,  56  L.  Ed.  1074,  1080,  32  Sup.  Ct.  Rep.  822;  Kansas 
City  Southern  Ry.  Co.  v.  C.  H.  Albers  Commission  Co.,  223  U.  S.  573,  591,  56  L.  Ed. 
556,  565,  32  Sup.  Ct.  Rep.  316. 

4  Norfolk  &  W.  R.  R.  Co.  v.  Conley,  236  U.  S.  605,  59  L.  Ed.  745,  35  Sup.  Ct.  Rep. 
437;  Wood  v.  Chesborough,  228  U.  S.  672,  678,  57  L.  Ed.  1018, 1021,  33  Sup.  Ct.  Rep. 
706;  Southern  P.  Co.  v.  Schuyler,  227  U.  S.  601,  611,  57  L.  Ed.  662,  669,  43  L.  R.  A. 
(N.  S.)  901,  33  Sup.  Ct.  Rep.  277;  Creswill  v.  Grand  Lodge,  K.  P.,  225  U.  S.  246,  261, 
56  L.  Ed.  1074,  1080,  32  Sup.  Ct.  Rep.  822;  Washington  ex  rel.  Oregon  R.  &  Nov.  Co. 
v.  Fairchild,  224  U.  S.  510,  528,  56  L.  Ed.  863,  869,  32  Sup.  Ct.  Rep.  535;  Cedar 
Rapids  Gaslight  Co.  v.  Cedar  Rapids,  223  U.  S.  655,  658,  669,  56  L.  Ed.  594,  604,  32 
Sup.  Ct.  Rep.  389;  Kansas  City  Southern  R.  Co.  v.  C.  H.  Albers  Commission  Co., 
223  U.  S.  573,  591,  56  L.  Ed.  556,  565,  32  Sup.  Ct.  Rep.  316. 

(152) 


Ch.  IX)     REVIEW  OF  DECISIONS   OF  HIGHEST   STATE  COURTS  §  57 

agent  or  officer  of  a  corporation,  sufficiently  representative,  to 
give  notice  to  the  corporation,  so  that  it  might  make  its  defenses. x 

The  Supreme  Court  will  examine  only  the  record  as  certified 
to  it  and  matters  outside  the  record  will  not  be  considered. 2 
§  57*  What  are  Federal  questions — Claims  under  the  Fourteenth 
Amendment,  challenging  the  Constitutionality  of  a  State 
Statute. 

The  Fourteenth  Amendment  provides : 

"  No  State  shall  make  or  enforce  any  law  which  shall  abridge 
the  privileges  or  immunities  of  citizens  of  the  United  States ;  nor 
shall  any  State  deprive  any  person  of  life,  liberty,  or  property, 
without  due  process  of  law,  nor  deny  to  any  person  within  its 
jurisdiction  the  equal  protection  of  the  laws." 

A  federal  question  is  presented  when  the  claim  was  made  in 
the  State  Court  that  a  state  statute  as  written  or  as  administered 
and  interpreted  by  the  highest  Court  of  the  state  in  some  way 
contravenes  the  Fourteenth  Amendment  to  the  Constitution  of 
the  United  States  or  deprived  a  party  of  "due  process"  or  "the 
equal  protection  of  the  law."3 

1  Kelsey  v.  Tilt,  207  U.  S.  50;  Old  Wayne  Life  Assn.  v.  McDonough,  204  U.  S.  9, 
27  Sup.  Ct.  Rep.  236,  51  L.  Ed.  345;  Conley  v.  Mathieson  Alkali  Works,  190  U.  S. 
406,  23  Sup.  Ct.  Rep.  728,  47  L.  Ed.  1113;  Conn.  Mutual  Life  Ins.  Co.  v.  Spratley, 
172  U.  S.  602,  19  Sup.  Ct.  Rep.  308,  43  L.  Ed.  569;  Hovey  v.  Elliott,  167  U.  S.  445, 
17  Sup.  Ct.  Rep.  841,  42  L.  Ed.  215;  Reynolds  v.  Stockton,  140  U.  S.  254,  11  Sup. 
Ct.  Rep.  773,  35  L.  Ed.  464;  St.  Clair  v.  Cox,  106  U.  S.  350, 1  Sup.  Ct.  Rep.  354, 27 
L.  Ed.  222;  Windsor  v.  McVeigh,  93  U.  S.  277,  23  L.  Ed.  914. 

2  San  Antonio  &  A.  P.  R.  Co.  v.  Wagner,  241  U.  S.  476,  36  Sup.  Ct.  Rep.  626, 
60  L.Ed.  1110. 

3  O'Neil  v.  Learner,  239  U.  S.  244,  36  Sup.  Ct.  Rep.  54,  60  L.  Ed.  249;  LondoneJ 
v.  Denver,  210  U.  S.  386,  28  Sup.  Ct.  Rep.  373,  52  L.  Ed.  1103;  Old  Wayne  v. 
McDonough,  204  U.  S.  9,  27  Sup.  Ct.  Rep.  236,  51  L.  Ed.  345;  C.  B.  &  Q.  Ry. 
Co.  v.  Drainage  Comms.,  200  U.  S.  561,  26  Sup.  Ct.  Rep.  341,  50  L.  Ed.  596; 
Cincinnati  Packet  Co.  v.  Bay,  200  U.  S.  182,  26  Sup.  Ct.  Rep.  208,  50  L.  Ed. 
428;  San  Jose'  Land  &  Water  Co.  v.  San  Jose"  Ranch  Co.,  189  U.  S.  177,  23llSup. 
Ct.  Rep.  487,  47  L.  Ed.  765;  Yazoo  &  Miss.  Valley  R.  R.  Co.  v.  Adams,  180  U.  S.  1, 
21  Sup.  Ct.  Rep.  240,  45  L.  Ed.  395;  Amer.  Sugar  Refining  Co.  v.  Louisiana,  179 
U.  S.  89,  21  Sup.  Ct.  Rep.  43,  45  L.  Ed.  102;  Conn.  Mutual  Life  Ins.  Co.  v.  Spratley, 
172  U.  S.  609,  19  Sup.  Ct.  Rep.  30S,  43  L.  Ed.  569;  Green  Bay  v.  Patten  Paper  Co., 
172  U.  S.  68,  19  Sup.  Ct.  Rep.  97,  43  L.  Ed.  364;  C.  B.  &  Q.  R.  R.  Co.  v.  Chicago, 

(153) 


Ch.  IX)     REVIEW  OF  DECISIONS   OF  HIGHEST   STATE  COURTS  §§  5S~G0 

A  Constitutional  question  is  presented  where  the  claim  is 
made  that  a  State  statute  as  administered  and  interpreted  by  the 
highest  Court  of  the  State  violates  the  guarantees  of  the  Federal 
Constitution,  although  the  statute  as  written  may  be  free  from 
that  objection.1 
§  58.  Application  and  effect. 

The  denial  of  a  substantial  claim  based  upon  the  Constitution 
of  the  United  States,  involving  the  application  and  effect  of  that 
instrument,  presents  a  Federal  question. 2 
§  59.  Habeas  corpus  from  state  court. 

On  error  to  a  state  court  from  a  decision  in  habeas  corpus 
;  proceedings  the  Supreme  Court  of  the  United  States  will  examine 
the  sole  question  whether  the  petitioner  has  been  denied  a  right 
guaranteed  by  the  Constitution  of  the  United  States  or  laws  or 
treaties  of  the  United  States.3 
§  60.  "  Due  process  of  law,"  "  Equal  protection  of  the  law." 

The  provisions  of  the  Fourteenth  Amendment  are  universal 
in  their  application  to  all  persons  within  the  territorial  jurisdiction 


166  U.  S.  226,  17  Sup.  Ct.  Rep.  581,  41  L.  Ed.  979;  Reagan  v.  Farmers'  Loan  & 
Trust  Co.,  154  U.  S.  362,  14  Sup.  Ct.  Rep.  1047,  38  L.  Ed.  1014;  Scott  v.  McNeal, 
154  U.  S.  34,  14  Sup.  Ct.  Rep.  1108,  38  L.  Ed.  896;  Kaukauna  Co.  v.  Green  Bay, 
etc.,  Canal,  142  TJ.  S.  269,  12  Sup.  Ct.  Rep.  173,  35  L.  Ed.  1004;  Chicago  Life  Ins. 
Co.  v.  Needles,  113  U.  S.  579,  5  Sup.  Ct.  Rep.  681,  28  L.  Ed.  1084;  Furman  v. 
Nichols,  75  U.  S.  56,  19  L.  Ed.  370. 

1  Myles  Salt  Co.  v.  Iberia  &  St.  M.  Drainage  District,  239  U.  S.  478,  36  Sup.  Ct. 
Rep.  204,  60  L.  Ed.  392. 

*  Miles  Salt  Co.  v.  Board  of  Commissioners,  239  U.  S.  478,  36  Sup.  Ct.  Rep.  204, 
60  L.  Ed.  392;  Home  Telephone  Co.  v.  Los  Angeles,  227  U.  S.278,  57  L.  Ed.  510; 
Stearns  v.  Minnesota,  179  U.  S.  223,  21  Sup.  Ct.  Rep.  73,  45  L.  Ed.  162;  Raymond  v- 
Chicago  Traction  Co.,  207  U.  S.  20,  52  L.  Ed.  78;  Miss.  R.  Com.  v.  I.  C.  R.  Co., 
203  U.  S.  335,  27  Sup.  Ct.  Rep.  90,  51  L.  Ed.  209;  Vicksburg  Waterworks  Co.  v. 
Vicksburg,  185  U.  S.  65,  22  Sup.  Ct.  Rep.  585,  46  L.  Ed.  808;  Detroit  v.  Detroit 
Citizens'  Street  R.  Co.,  184  U.  S.  368,  22  Sup.  Ct.  Rep.  410,  46  L.  Ed.  592; 
City  R.  Co.  v.  Citizens'  Street  R.  Co.,  184  U.  S.  368,  22  Sup.  Ct.  Rep.  410,  46  L. 
Ed.  592. 

s  Yick  W.  v.  Hopldns,  118  U.  S.  356,  6  Sup.  Ct.  Rep.  1064,  30  L.  Ed.  220;  Leo 
Frank  v.  State,  237  U.  S.  309,  35  Sup.  Ct.  Rep.  582,  59  L.  Ed.  969. 

(154) 


Ch.  IX)     REVIEW  OF  DECISIONS   OF  HIGHEST   STATE  COURTS    §§  61-63 

of  the  U.  S.  without  regard  to  any  differences  of  race,  of  color,  or  of 
nationality,  and  the  equal  protection  of  the  laws  is  a  pledge  of 
equal  laws. * 
§  61.  Class  legislation  prohibited. 

Class  legislation  and  discrimination  are  prohibited  by  the 
Fourteenth  Amendment. 2 
§  62.  Embraces  all  agencies  of  State  including  the  judiciary. 

The  prohibitions  contained  in  the  Fourteenth  Amendment 
extend  to  all  acts  of  the  State,  whether  through  its  legislative,  its 
executive,  or  its  judicial  authorities. 3 

The  description  in  the  Fourteenth  Amendment  "any  person 
within  its  jurisdiction  "  includes  aliens.4 
§  63.  Guaranties. 

The  Fourteenth  Amendment  was  intended  "to  secure  the 
individual  from  the  arbitrary  exercise  of  the  powers  of  govern- 
ment, unrestrained  by  the  established  principles  of  private  rights 
and  distributive  justice."5 

1  Truax  v.  Raich,  239  U.  S.  33,  36  Sup.  Ct.  Rep.  7,  60  L.  Ed.  131;  Yick  Wo.  v. 
Hopkins,  118  U.  S.  356,  30  L.  Ed.  220,  6  Sup.  Ct.  Rep.  1064. 

3  Yick  Wo.  v.  Hopkins,  118  U.  S.  356,  6  Sup.  Ct.  Rep.  1064,  30  L.  Ed.  220;  Truax 
v.  Raich,  239  U.  S.  33,  36  Sup.  Ct.  Rep.  7,  60  L.  Ed.  131. 

3  Home  Telephone  &  Telegraph  Co.  vs.  City  of  Los  Angeles,  227  U.  S.  278, 
33  Sup.  Ct.  Rep.  278,  57  L.  Ed.  510;  Raymond  v.  Chicago  Union  Traction  Co.,  207 
U.  S.  40,  28  Sup.  Ct.  Rep.  20,  52  L.  Ed.  78;  Walker  v.  L.  McLoud,  204  U.  S. 
310,  27  Sup.  Ct.  Rep.  293,  51  L.  Ed.  495;  Fayerweather  v.  Ritch,  195  U.  S.  276, 
25  Sup.  Ct.  Rep.  58,  49  L.  Ed.  193;  Chicago,  Burlington  &  Quincy  R.  R.  Co.  v. 
Chicago,  166  U.  S.  226,  17  Sup.  Ct.  Rep.  581,  41  L.  Ed.  979;  Murray  v.  Louisiana, 
163  U.  S.  105,  16  Sup.  Ct.  Rep.  990,  41  L.  Ed.  87;  Gibson  v.  Mississippi,  162  U.  S. 
579,  16  Sup.  Ct.  Rep.  904,  40  L.  Ed.  1075;  Bergemann  v.  Backer,  157  U.  S.  655,  15 
Sup.  Ct.  Rep.  727,  39  L.  Ed.  845;  Scott  v.  McNeal,  154  U.  S.  896,  14  Sup.  Ct.  Rep. 
1108,  38  L.  Ed.  896;  Yick  Wo.  v.  Hopkins,  118  U.  S.  356,  30  L.  Ed.  220,  6  Sup.  Ct. 
Rep.  1064;  Robb  v.  Connolly,  111  U.  S.  624,  637, 4  Sup.  Ct.  Rep.  544,  28  L.  Ed.  542; 
Bush  v.  Kentucky,  107  U.  S.  110,  1  Sup.  Ct.  Rep.  625,  27  L.  Ed.  354;  Wood  v. 
Brush,  140  U.  S.  278,  11  Sup.  Ct.  Rep.  738,  35  L.  Ed.  505;  Neal  v.  Delaware,  103 
U.  S.  370,  397  (26: 567,  574),  26  L.  Ed.  567;  Ex  parte  Virginia  ("Virginia  v.  Rives") 
100  U.  S.  313,  318,  319  (25:  667,  669),  25  L.  Ed.  667. 

4  Truax  v.  Raich,  supra,  but  compare  Crane  v.  New  York,  239  IT.  S.  195,  36 
Sup.  Ct.  85,  60  L.  Ed.  218. 

s  Scott  v.  McNeal,  154  U.  S.  896, 14  Sup.  Ct.  Rep.  1108,  38  L.  Ed.  896. 

(155) 


Ch.  IX)     REVIEW  OF  DECISIONS   OF  HIGHEST  STATE  COURTS  §§  G4-G8 

§  64.  Includes  the  State  judiciary. 

A  State  may  not,  by  any  of  its  agencies,  disregard  the  prohibi- 
tions of  the  Fourteenth  Amendment.  Its  judicial  authorities 
may  keep  within  the  letter  of  the  statute  prescribing  forms  of 
procedure  in  the  courts  and  give  the  parties  interested  the  fullest 
opportunity  to  be  heard,  and  yet  it  might  be  that  its  final  action 
would  be  inconsistent  with  that  Amendment.  In  determining 
what  is  due  process  of  law  regard  must  be  had  to  substance,  not 
to  form. " 
§  65.  Where  a  party  had  opportunity  to  be  heard. 

But  ordinarily  where  a  party  brings  suit  in  the  State  Court, 
and  has  a  full  hearing  of  his  case  on  its  merits,  the  decision  ad- 
verse to  his  claims,  even  if  erroneous,  does  not  deprive  him  of  his 
property  without  due  process  of  law. 2 
§  66.  No  due  process  if  without  notice. 

No  judgment  of  a  court  is  due  process  of  law,  if  rendered  with- 
out jurisdiction  in  the  court,  or  without  notice  to  the  party.3 
§  67.  A  State  cannot  prevent  the  object  of  due  process. 

A  State  cannot  make  anything  due  process  of  law  which,  by 
its  own  legislation,  it  chooses  to  declare  such. 4 

A  mere  erroneous  construction  of  State  or  local  law  does  not 
deprive  a  party  of  due  process. s 
§  68.  "  Due  process  "  applied  to  judicial  proceedings. 

The  words  "due  process  of  law,"  when  applied  to  judicial 

1  Chicago,  B.  &  Q.  R.  Co.  v.  Chicago,  166  U.  S.  226, 235, 17  Sup.  Ct.  Rep.  581,  41 
L.  Ed.  979. 

*  Christianson  v.  Kings  County,  239  U.  S.  356,  373,  36  Sup.  Ct.  Rep.  114,  60  L. 
Ed.  327;  Central  Land  Co.  v.  Laidley,  159  U.  S.  103-112,  16  Sup.  Ct.  Rep.  80,  40 
L.Ed.  91. 

3  Scott  v.  McNeal,  154  U.  S.  896,  14  Sup.  Ct.  Rep.  1108,  38  L.  Ed.  896;  G.  & 
C.  Merriam  Co.  v.  Saalfield,  241  U.  S.  22,  36  Sup.  Ct.  Rep.  447,  60  L.  Ed.  868. 

4  Davidson  v.  New  Orleans,  96  U.  S.  97,  102,  26  L.  Ed.  616,  619;  Chicago  B.  Q.  & 
R.  Co.  v.  Chicago,  166  U.  S.  226,  235,  17  Sup.  Ct.  Rep.  581,  41  L.  Ed.  979. 

s  New  Orleans  Waterworks  Co.  v.  Louisiana,  185  U.  S.  353,  22  Sup.  Ct.  Rep. 
691, 46  L.  Ed.  936;  Equitable  Life  Assurance  Society  v.  Brown,  187  U.  S.  308;  Saw- 
yer v.  Piper,  189  U.  S.  154,  23  Sup.  Ct.  Rep.  633, 47  L.  Ed.  757;  Cosmopolitan  Club 
v.  Virginia,  208  U.  S.  378, 28  Sup.  Ct.  Rep.  378,  52  L.  Ed.  536. 

(156) 


Ch.  IX)     REVIEW  OF  DECISIONS   OF  HIGHEST  STATE  COURTS   §§  69-70 

proceedings  mean  a  course  of  legal  proceedings  according  to  those 
rules  and  principles  which  have  been  established  in  our  systems 
of  jurisprudence  for  the  protection  and  enforcement  of  private 
rights.  To  give  such  proceedings  any  validity,  there  must  be  a 
tribunal  competent  by  its  constitution — that  is,  by  the  law  of  its 
creation — to  pass  upon  the  subject-matter  of  the  suit;  and  if 
that  involves  merely  a  determination  of  the  personal  liability 
of  the  defendant,  he  must  be  brought  within  the  jurisdiction  by 
service  of  process  within  the  State,  or  his  voluntary  appear- 
ance. z 
§  69.  Notice  necessary  before  judgment. 

And  the  defendant  must  have  notice  before  judgment.  A 
notice  subsequent  to  the  judgment  will  not  give  it  validity. a 

Even  a  judgment  in  proceedings  strictly  in  rem  binds  only 
those  who  could  have  made  themselves  parties  to  the  proceedings, 
and  who  had  notice,  either  actually,  or  by  the  thing  condemned 
being  first  seized  into  the  custody  of  the  court.3 

And  such  a  judgment  is  wanting  in  due  process  of  law  and 
wholly  void,  if  a  fact  essential  to  the  jurisdiction  of  the  court  did 
not  exist.4 
§  70.  Question  of  due  service  of  process. 

On  error  to  the  State  Court  where  the  allegation  is  made  that 
the  judgment  of  the  State  Court  amounts  to  a  taking  of  property 
without  due  process  of  law,  "the  question  for  us  to  decide  is, 
whether  upon  the  facts  of  this  case,  the  service  of  process  upon  the 

1  Pennoyer  v.  Neff,  95  U.  S.  714,  733,  24  L.  Ed.  565,  572;  Scott  v.  McNeal,  154 
U.  S.  896, 14  Sup.  Ct.  Rep.  1108,  38  L.  Ed.  896;  Chicago,  B.  &  Q.  R.  Co.  v.  Chicago, 
166  U.  S.  235,  17  Sup.  Ct.  Rep.  581,  41  L.  Ed.  979.  And  the  process  must  not  be 
mere  idle  form.  Dean  v.  Nelson,  10  Wall.  (U.  S.)  171,  19  L.  Ed.  926;  Lasere  v. 
Rochereau,  17  Wall.  (U.  S.)  437,  21  L.  Ed.  694;  Christianson  v.  Kings  County,  239 
U.  S.  356, 373,  36  Sup.  Ct.  Rep.  114,  60  L.  Ed.  327. 

a  Webster  v.  Reid,  11  How.  (U.  S.)  437,  13  L.  Ed.  761. 

3  The  Mary,  13  U.  S.  9  Cranch  126,  144,  3  L.  Ed.  678,  684;  Hollingsworth  v. 
Barbour,  29  U.  S.  4  Pet.  466,  475,  7  L.  Ed.  922,  926;  Pennoyer  v.  Neff,  95  U.  S.  714, 
727,  24  L.  Ed.  565,  570. 

4  Scott  v.  McNeal,  154  U.  S.  896,  14  Sup.  Ct.  Rep.  1108,  38  L.  Ed.  896. 

(157) 


Ch.  IX)     REVIEW  OF  DECISIONS   OF  HIGHEST   STATE  COURTS   §§  71-73 

person  named  was  a  sufficient  service  to  give  jurisdiction  to  the 

court  over  this  corporation. " 1 

§  71.  Supreme  Court  will  decide  whether  due  process  denied. 

In  reviewing  the  judgment  of  the  State  Court,  the  U.  S. 
Supreme  Court  will  determine  for  itself  the  diffeient  questions 
involved  in  the  determination  of  the  question  whether  the  judg- 
ment of  the  State  Court  deprived  the  plaintiff  in  error  of  its 
property  without  due  process  of  law,  as  guaranteed  by  the 
Fourteenth  Amendment.2 
§  72.  Service  of  process  on  foreign  corporation. 

Whether  a  foreign  corporation  has  been  duly  served  with 
process  and  given  an  opportunity  to  be  heard  is  a  Federal  ques- 
tion and  is  reviewable  on  a  writ  of  error,  provided  the  reliance 
on  the  Fourteenth  Amendment  to  the  Constitution  of  the  United 
States  was  properly  pleaded  or  brought  to  the  attention  of  the 
State  Court. 3 
§  73.  "  Due  process  "  synonymous  with  "  the  law  of  the  land." 

By  the  phrase  "  by  the  law  of  the  land  "  is  meant  according  to 

1  Conn.  Mutual  Life  Ins.  Co.  v.  Spratley,  172  U.  S.  610,  19  Sup.  Ct.  Rep.  308,  43 
L.  Ed.  569,  per  Mr.  Justice  Peckham. 

2  Conn.  Mutual  Life  v.  Spratley,  Supra;  Huntington  v.  Attrill,  146  IT.  S.  657,  664, 
13  Sup.  Ct.  Rep.  224,  36  L.  Ed.  1123,  and  cases  cited;  Mobile  &  O.  R.  Co.  v.  Tennes- 
see, 153  U.  S.  486,  492,  495,  14  Sup.  Ct.  Rep.  968,  38  L.  Ed.  793,  and  cases  cited; 
Scott  v.  McNeal,  154  U.  S.  34,  14  Sup.  Ct.  Rep.  1108, 38  L.  Ed.  896. 

3  Washington  Virginia  Ry.  Co.  v.  Real  Estate  Trust,  238  U.  S.  185,  35  Sup.  Ct. 
Rep.  818,  59  L.  Ed.  1262;  Interstate  Amusement  Co.  v.  Albert,  239  U.  S.  560,  36 
Sup.  Ct.  Rep.  168,  60  L.  Ed.  439;  Tyler  Co.  v.  Ludlow-Saylcr  Co.  236  U.  S.  723, 
35  Sup.  Ct.  Rep.  458,  59  L.  Ed.  1493;  Int.  Harvester  Co.  v.  Ky.  234  U.  S.  579,  58 
L.  Ed.  1479,  34  Sup.  Ct.  Rep.  944;  St.  Louis  &  S.  W.  Ry.  v.  Alexander,  227  U.  S.  218, 
57  L.  Ed.  486,  33  Sup.  Ct.  Rep.  245;  Green  v.  Chicago,  B.  &  Q.  R.  R.  205  U.  S.  530, 
27  Sup.  Ct.  Rep.  595,  51  L.  Ed.  916;  Old  Wayne  Life  Assn.  v.  McDonough,  204  U. 
S.  9,  27  Sup.  Ct.  Rep.  236,  51  L.  Ed.  345;  Conley  v.  Mathieson  Alkali  Works,  190 
U.  S.  406,  23  Sup.  Ct.  Rep.  728,  47  L.  Ed.,  113;  Conn.  Mutual  Life  Ins.  Co.  v. 
Spratley,  172  U.  S.  602, 19  Sup.  Ct.  Rep.  308,  43  L.  Ed.  569;  Hovey  v.  Elliott,  167  U. 
S.  445,  17  Sup.  Ct.  Rep.  841, 42  L.  Ed.  215;  Reynolds  v.  Stockton,  140  U.  S.  254,  11 
Sup.  Ct.  Rep.  773,  35  L.  Ed.  464;  St.  Clair  v.  Cox,  106  U.  S.  350,  1  Sup.  Ct.  Rep.  354, 
27  L.  Ed.  222;  Windsor  v.  McVeigh,  93  U.  S.  277,  23  L.  Ed.  914;  Grant  v.  Cananea, 
102  N.  Y.  S.,  642;  Iver  Wold  v.  Colt.,  102  Minn.,  389-91  (citing  Federal  decisions). 

(158) 


Ch.  IX)     REVIEW  OF  DECISIONS  OF  HIGHEST  STATE  COURTS   §§  74-76 

the  course  of  the  common  law,  and  by  the  words  "due  process  of 
law"  is  meant  a  prosecution  of  suit  according  to  the  prescribed 
forms  and  solemnities  for  the  purpose  of  ascertaining  guilt,  or 
determining  the  title  to  property. z 
§  74.  Due  process  as  used  in  Magna  Charta. 

The  words  "due  process  of  law"  were  undoubtedly  intended 
to  convey  the  same  meaning  as  the  words  "by  the  law  of  the 
land, "  in  Magna  Charta.    Lord  Coke  in  his  commentary  on  those 
words  (2  Inst.  50),  says,  they  mean  due  process  of  law.2 
§  75.  Substance,  not  form,  governs. 

In  determining  whether  a  person  has  been  afforded  due  process 
of  law,  regard  must  be  had  to  substance  and  not  to  form.3 
§  76.  "  Impairing  obligations  of  a  contract." 

A  Federal  question  sufficiently  appears,  although  the  com- 
plainant does  not  mention  the  Constitution  of  the  United  States, 
where  the  whole  theory  of  the  case  is  the  impairment  by  statute 
of  a  contract  created  by  a  prior  statute,  and  the  presentation  and 
decision  of  this  question  appear  from  the  record  and  opinion  of 
the  State  court. 4 

1  Taylor  v.  Porter,  4  Hill  140. 

8  Benedict  v.  People,  149  111.  600;  Den.  v.  The  Hoboken  Land  and  Improvement 
Co.,  59  U.  S.  272,  15  L.  Ed.  372. 

3  Raymond  v.  Chicago  Union  Traction  Co.,  207  U.  S.  40;  Simon  v.  Craft,  182  U. 
S.  427,  21  Sup.Ct.  Rep.  836,  45  L.  Ed.  1165;  Fayerweather  v.  Ritch,  195  U.  S.  276, 
25  Sup.  Ct.  Rep.  58,  49  L.  Ed.  193;  Pacific  Electric  R.  R.  Co.  v.  Los  Angeles,  194 
U.  S.,  112,  120,  24  Sup.  Ct.  Rep.  586,  48  L.  Ed.  896;  Louisville  R.  Co.  v.  Schmidt, 
177  U.  S.  231,  20  Sup.  Ct.  Rep.  620,  44  L.  Ed.  747;  Illinois  Central  R.  R.  Co.  v. 
Adams,  180  U.  S.  31,  21  Sup.  Ct.  Rep.  251,  45  L.  Ed.  410;  Howard  v.  DeCordova, 
177  U.  S.  613,  20  Sup.  Ct.  Rep.  817,  44  L.  Ed.  908;  Huntington  v.  Laidley,  176  U.  S. 
668,  20  Sup.  Ct.  Rep.  526,  44  L.  Ed.  630;  Cooper  v.  Newell,  173  U.  S.  555,  19  Sup. 
Ct.  Rep.  506,  43  L.  Ed.  808;  Chicago  B.  Q.  R.  Co.  v.  Chicago,  166  U.  S.  226,  17  Sup. 
Ct.  Rep.  581,  41  L.  Ed.  979;  Robb  v.  Vos.,  155  U.  S.  13,  45,15  Sup.  Ct.  Rep.  4,  39 
L.  Ed.  52;  Scott  v.  McNeal,  154  U.  S.  34,  14  Sup.  Ct.  Rep.  1108,  38  L.  Ed.  896; 
Simon  v.  Southern  R.  Co.,  195  Fed.  56. 

4  Jones  National  Bank  v.  Yates,  240  U.  S.  241,  36  Sup.  Ct.  Rep.  429,  50  L.  Ed. 
788;  Thomas  v.  Taylor,  224  U.  S.  73,  32  Sup.  Ct.  403,  56  L.  Ed.  673;  Grand  Trunk 
Western  R.  R.  Co.  v.  Lindsey,  223  U.  S.  42,  58  L.  Ed.  833,  34  Sup.  Ct.  Rep.  581; 
Columbia  Water  Power  Co.  v.  Columbia  Electric  Street  Railway  Light  &  Power 
Co.,  172  U.  S.  475,  477,  43  L.  Ed.  521,  19  Sup.  Ct.  Rep.  247. 

(159) 


Ch.  IX)     REVIEW   OF  DECISIONS    OF   HIGHEST   STATE  COURTS    §§  77-78 

§  77.  What  is  sufficient  to  show  claim  under  contract  clause. 

All  that  is  necessary  to  establish  the  jurisdiction  of  the 
Supreme  Court  of  the  United  States  is  to  show  that  the  complain- 
ant had,  or  claimed  in  good  faith  to  have,  a  contract  with  a 
municipality,  which  the  latter  had  attempted  to  impair. x 

Where  the  impairment  of  contract  obligations  is  alleged,  the 
jurisdictional  inquiry  is  directed  to  the  ascertainment  whether 
the  State  Court  has  given  the  subsequent  law  any  validity. 2 
§  78.  United  States  Supreme  Court  not  bound  by  finding  of  State 
Court. 

Where  it  sufficiently  appears  that  the  question  of  impairment 
of  contract  obligation  was  raised  in  the  State  Court,  and  that  the 
highest  court  of  the  State  gave  effect  to  the  subsequent  legislation, 
a  case  is  properly  presented  for  review  on  a  writ  of  error,  and  it  is 
the  duty  of  the  United  States  Supreme  Court  to  determine  for 
itself  whether  a  contract  existed  and  whether  its  obligation  has 
been  impaired.3 

1  New  York  Elec.  Lines  Co.  v.  Empire  City  Subway  Co.,  235  U.  S.  179,  35  Sup. 
Ct.  Rep.  72,  59  L.  Ed.  184;  City  R.  R.  Co.  v.  Citizens'  R.  Co.  1G6  U.  S.  5G2, 17  Sup. 
Ct.  Rep.  653, 41  L.  Ed.  1114. 

a  Moore-Mansfield  Const.  Co.  v.  Electrical  Installation  Co.,  234  U.  S.  619,  58 
L.  1503,  34  Sup.  Ct.  Rep.  941;  Cross  Lake  Shooting  &  Fishing  Club  v.  Louisiana,  224 
U.  S.  632,  639,  56  L.  Ed.  924,  928,  32  Sup.  Ct.  Rep.  577;  Missouri  &  K.  Interurban 
R.  Co.  v.  Olathe,  222  TJ.  S.  187,  190,  56  L.  Ed.  146,  158,  32  Sup.  Ct.  Rep.  47;  Fisher 
v.  New  Orleans,  218  U.  S.  438,  440,  54  L.  Ed.  1099,  1100,  31  Sup.  Ct.  Rep.  57; 
Columbia  Water  Power  Co.  v.  Columbia  St.  Ry.  172  U.  S.  475,  19  Sup.  Ct.  Rep. 
247,  43  L.  Ed.  521;  Bacon  v.  Texas,  163  U.  S.  207, 216,  219,  41  L.  Ed.  132, 136, 137, 
16  Sup.  Ct.  Rep.  1023;  Central  Land  Co.  v.  Laidley,  159  TJ.  S.  103,  111,  40  L.  Ed.  91, 
94,  16  Sup.  Ct.  Rep.  80;  Wilmington  W.  R.  Co.  v.  Alsbrook,  146  U.  S.  279,  13  Sup. 
Ct.  Rep.  72,  36  L.  Ed.  972;  New  Orleans  Waterworks  Co.  v.  Louisiana  Sugar  Ref. 
Co.  125  U.  S.  18,  38, 39,  31  L.  Ed.  607,  614,  615,  8  Sup.  Ct.  Rep.  741;  Lehigh  Water 
Co.  v.  Easton,  121  U.  S.  388,  392,  30  L.  Ed.  1059, 1060,  7  Sup.  Ct.  Rep.  916;  Knox  v. 
Exchange  Bank,  12  Wall.  379,  383,  20  L.  Ed.  414,  415. 

3  Interstate  Amusement  Co.  v.  Albert,  239  TJ.  S.  560,  36  Sup.  Ct.  Rep.  168,  60 
L.  Ed.  439;  New  York  Elec.  Lines  v.  Subway  Co.,  235  TJ.  S.  562, 35  Sup.  Ct.  Rep.  72, 
59  L.  Ed.  184;  Louisiana  R.  &  Nav.  Co.  v.  Bchrman,  235  TJ.  S.  164,  35  Sup.  Ct.  Rep. 
62,  59  L.  Ed.  175;  Russell  v.  Sebastian,  233  U.  S.  195,  58  L.  Ed.  912;  Atlantic  Coast 
Line  Co.  v.  Goklsboro,  232  TJ.  S.  548,  556,  58  L.  Ed.  721,  725,  34  Sup.  Ct.  Rep.  364; 
Grand  Trunk  Western  R.  R.  Co.  v.  South  Bend,  227  U.  S.  544,  57  L.  Ed.  633,  33  Sup. 

(1G0) 


Ch.  IX)     REVIEW  OF  DECISIONS   OF  HIGHEST  STATE  COURTS    §§  79-80 

§  79.  Ordinances. 

(a)  Although  an  ordinance  takes  the  form  of  a  contract  and 
provides  for  its  acceptance  by  the  grantee  of  the  privilege  given 
thereby,  it  cannot  be  treated  as  a  mere  contract,  and  as  such  has 
the  force  of  law  within  the  limits  of  the  muncipality. * 

(b)  If  the  impairment  of  prior  contract  rights  was  caused  by 
the  acceptance  of  a  latter  ordinance  by  a  public  service  corpora- 
tion, then  such  impairment  was  caused  by  the  acceptance  of  the 
ordinance  and  not  by  the  passage  of  same.  In  such  a  case  no 
Federal  question  arises. 2 

(c)  If  an  ordinance  is  merely  void  under  the  laws  of  the  State, 
no  Federal  question  is  presented.3 

§  80.  Charters  held  inviolable. 

"A  charter  of  incorporation  granted  by  a  State  creates  a 
contract  between  the  State  and  the  corporation  which  the  State 
cannot  violate. " 4 

This  has  been  held  so  often  by  this  Court  that  it  is  a  "work  of 
supererogation  "  to  repeat  it. s 

Ct.  Rep.  303;  Northern  Pac.  R.  R.  Co.  v.  Minnesota,  208  U.  S.  583;  St.  Paul  Gas- 
light Co.  v.  St.  Paul,  181  U.  S.  142,  148,  45  L.  Ed.  788,  791,  21  Sup.  Ct.  Rep.  575; 
Douglas  v.  Kentucky,  168  U.  S.  488,  502,  42  L.  Ed.  553,  557,  18  Sup.  Ct. 
Rep.  199. 

1  New  York  Electric  Lines  v.  Subway  Co.,  235  U.  S.  562,  35  Sup.  Ct.  Rep.  72,  59  L. 
Ed.  184;  City  R.  Co.  v.  Citizens'  St.  R.  R.  Co.,  166  U.  S.  562,  17  Sup.  Ct.  Rep.  653, 
412  L.  Ed.  1114;  New  Orleans  Waterworks  v.  Louisiana  Sugar  Refining  Co.,  125 
U.  S.  18,  8  Sup.  Ct.  Rep.  741,  31  L.  Ed.  607;  Hayes  v.  Mich.  Cent.  R.  R.  Co.,  Ill 
U.  S.  228,  237,  240,  4  Sup.  Ct.  Rep.  369,  28  L.  Ed.  410;  Iron  Mountain  R.  Co.  v. 
Memphis  (C.  C.  A.  6th  Cir.),  96  Fed.  113,  37  C.  C.  A.  410;  Mason  v.  Shawneetown, 
77  111.  533;  City  v.  Topeka  Ry.  Co.,  51  Kan.  609;  Dillon  on  Municipal  Corp.  4th  Ed. 
Vol.  1,  Sec.  308. 

2  Henderson  Bridge  Co.  v.  Henderson  City,  141  U.  S.  679,  12  Sup.  Ct.  Rep.  114, 
35  L.  Ed.  900;  173  U.  S.  592, 19  Sup.  Ct.  Rep.  553,  43  L.  Ed.  823. 

3  Hamilton  Gaslight  Co.  v.  Hamilton,  146  U.  S.  258-266,  13  Sup.  Ct.  Rep.  90,  36 
L.  Ed.  963 ;  Barney  v.  New  York,  193  U.  S.  430,  24  Sup.  Ct.  Rep.  502, 48  L.  Ed.  737. 

4  Dartmouth  College  Case,  4  Wheat.  518,  4  L.  Ed.  629. 

s  Wilmington  R.  R.  v.  Reid,  13  Wall.  264, 20  L.  Ed.  568;  Gibbons  v.  Mahon,  136 
U.  S.  557,  34  L.  Ed.  527,  10  Sup.  Ct.  Rep.  1057;  New  Orleans  Gas  Co.  v.  Louisiana 
Light  Co.  115  U.  S.  660, 29  L.  Ed.  520,  6  Sup.  Ct.  Rep.  252. 

11  (161) 


Ch.  IX)     REVIEW   OF   DECISIONS   OF   HIGHEST   STATE   COURTS    §§  81-83 

It  "has  been  the  settled  law  of  this  court  since  the  decision 
in  the  Dartmouth  College  case."1 
§  81.  Claims  under  Federal  statutes. 

A  party  who  unsuccessfully  relies  in  the  State  Court  upon  an 
Act  of  Congress  either  as  a  cause  of  action  or  defense  is  entitled 
to  bring  the  case  up  for  review  to  the  United  States  Supreme 
Court.2 
§  82.  "  Full  faith  and  credit " — Constitutional  provisions. 

Article  I,  §  1,  of  the  Constitution  of  the  United  States  of 
America  provides  that  full  faith  and  credit  shall  be  given  in  each 
State  to  the  public  acts,  records,  and  judicial  proceedings  of  every 
State.  Accordingly,  the  Supreme  Court  of  the  United  States 
will  review  a  case  from  the  highest  court  of  a  State  where  the 
Federal  question  based  upon  said  constitutional  provision  was 
fairly  presented.3 
§  83.  Failure  to  give  effect  to  Federal  judgment. 

A  writ  of  error  or  certiorari  will  also  lie  where  the  highest 
court  of  a  State  refuses  to  give  effect  to  a  judgment  rendered  by 
a  Federal  Court. 4 

1  Delaware  R.  R.  Tax,  18  Wall.  206,  21 L.  Ed.  8S8. 

2  Monages  v.  Alvarez,  235  U.  S.  81, 35  Sup.  Ct.  Rep.  95, 59  L.  Ed.  139;  S.  R.  R.  Co. 
v.  Crockett,  234  U.  S.  725,  58  L.  Ed.  15G4,  34  Sup.  Ct.  Rep.  897;  St.  Louis,  I.  &  M.  & 
S.  R.  R.  Co.  v.  Taylor,  210  U.  S.  281,  28  Sup.  Ct.  Rep.  616;  Nutt  v.  Knut,  200  U.  S. 
12,  50  L.  Ed.  348,  26  Sup.  Ct.  Rep.  216;  111.  Cent.  R.  R.  Co.  v.  McKendree,  203 
U.  S.  514,  525,  27  Sup.  Ct.  Rep.  153,  51  L.  Ed.  298;  Carter  v.  Texas,  177  U.  S.  442, 
20  Sup.  Ct.  Rep.  687, 44  L.  Ed.  839;  Furman  v.  Nichol,  8  Wall.  44,  19  L.  Ed.  370. 

3  Atchison,  Topeka  &  Santa  Fe  Ry.  Co.  v.  Sowers,  213  U.  S.  55;  Am.  Ex.  Co.  v. 
Mullin,  212  U.  S.  311;  Brown  v.  Fletcher  Estate,  210  U.  S.  88;  Fauntleroy  v.  Lum, 
210  U.  S.  43;  St.  Louis  &  Iron  Mt.  Ry.  Co.  v.  Taylor,  210  U.  S.  281;  Tilt  v.  Kelsey, 
207  U.  S.  43;  Harris  v.  Balk,  198  U.  S.  215,  25  Sup.  Ct.  Rep.  625,  49  L.  Ed.  1023; 
Hancock  Natl.  Bank  v.  Farnham,  176  U.  S.  640,  20  Sup.  Ct.  Rep.  506,  44  L.  Ed. 
619;  Great  Western  Tele.  Co.  v.  Purdy,  162  U.  S.  329;  Huntington  v.  Attrill,  146 
U.  S.  657,  13  Sup.  Ct.  Rep.  224,  36  L.  Ed.  1123;  Carpenter  v.  Strange,  141  U.  S.  87, 
11  Sup.  Ct.  Rep.  960,  35  L.  Ed.  640;  Dupasseur  v.  Rochereau,  21  Wall.  130,  134,  22 
L.  Ed.  588;  Crapo  v.  Kelly,  16  Wall.  610,  212  Ed.  430. 

4  Werlcin  v.  New  Orleans,  177  U.  S.  396,  20  Sup.  Ct.  Rep.  6S2,  44  L.  Ed.  817; 
Dowell  v.  Applegate,  152  U.  S.  327,  14  Sup.  Ct.  Rep.  611,  38  L.  Ed.  327;  Giles  v. 
Little,  134  U.  S.  649,  10  Sup.  Ct.  Rep.  623,  33  L.  Ed.  10C2;  Crescent  City  L.  S.  L.  H. 
Co.  v.  Butchers'  Union,  120  U.  S.  141,  7  Sup.  Ct.  Rep.  472,  30  L.  Ed.  641. 

(162) 


Ch.  IX)    REVIEW  OF  DECISIONS  OF  HIGHEST   STATE  COURTS   §§  84-86 

But  it  has  also  been  held  that  the  failure  of  a  State  Court  to 
give  effect  to  a  judgment  of  a  Federal  Court  rendered  subsequent 
to  a  judgment  rendered  by  a  State  Court  does  not  raise  a  Federal 
question,  but  involves  merely  a  question  of  res  adjudicata,1 
§  84.  Force  to  be  given  to  a  Federal  judgment. 

No  higher  sanctity  or  effect  can  be  claimed  for  a  judgment  of 
a  Federal  Court  than  is  due  under  the  same  circumstances  to 
judgments  of  State  courts  in  like  cases. 2 
§  85.  Judgments  of  the  same  jurisdiction. 

If  a  State  Court  erroneously  decides  a  question  of  law  regard- 
ing the  weight  to  be  given  one  of  its  own  judgments  in  its  own 
courts  and  among  its  own  citizens,  that  error  is  not  subject  to 
review  by  the  Supreme  Court  of  the  United  States.3 

Where  a  judgment  was  pleaded  with  the  statement  that  a 
denial  to  give  it  full  faith  and  credit  would  be  violating  the  Federal 
Constitution,  this  sufficiently  raises  a  Federal  question  reviewable 
in  the  U.  S.  Supreme  Court. 4 
§  86.  Navigable  waters  of  the  United  States. 

Decisions  of  the  highest  court  of  the  State  affecting  commerce 
and  navigable  waters  of  the  United  States  are  reviewable  in  the 
United  States  Supreme  Court.5 

1  Northern  Pacific  R.  R.  Co.  v.  Amato,  144  U.  S.  465,  12  Sup.  Ct.  Rep.  740,  36 
L.  Ed.  506. 

3  Phcenix  Fire  &  Marine  Ins.  Co.  v.  Tennessee,  161  U.  S.  174,  16  Sup.  Ct.  Rep. 
471,  40  L.  Ed.  660;  Dupasseur  v.  Rochereau,  88  U.  S.  130,  21  Wall.  130,  22  L.  Ed. 
588;  Embry  v.  Palmer,  107  U.  S.  3,  2  Sup.  Ct.  Rep.  25,  27  L.  Ed.  346. 

3  Phoenix  Fire  Ins.  Co.  v.  Tennessee,  161  U.  S.  474,  16  Sup.  Ct.  Rep.  471,  40  L. 
Ed.  660;  Newport  Light  Co.  v.  Newport,  151  U.  S.  527, 14  Sup.  Ct.  Rep.  429,  38  L. 
Ed.  259. 

4  Royal  Arcanum  v.  Green,  237  U.  S.  531,  35  Sup.  Ct.  Rep.  724,  59  L.  Ed. 
1089. 

s  Cubbins  v.  Mississippi  River  Commission,  241  U.  S.  351,  36  Sup.  Ct.  Rep.  671, 
60 L.Ed.  1041;  Schoomaker  v.  Gilmore,  102  U.  S.  118,  26  Ed.  95,  Adams  Exp.  Co. 
v.  Iowa,  196  U.  S.  147,  25  Sup.  Ct.  Rep.  185,  49  L.  Ed.  424;  Walsh  v.  Columbia 
R.  R.  Co.,  176  U.  S.  469,  20  Sup.  Ct.  Rep.  393,  44  L.  Ed.  548;  Belden  v.  Chase,  150 
U.  S.  674, 14  Sup.  Ct.  Rep.  264,  37  L.  Ed.  1218.  For  definition  of  term,  "Navigable 
Waters  of  the  U.  S."  see  The  Montello,  11  Wall.  411,  20  L.  Ed.  191;  The  Montello, 
20  Wall.  430, 22  L.  Ed.  391. 

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Ch.  IX)     REVIEW   OF  DECISIONS   OF  HIGHEST  STATE  COURTS    §§  87~S9 

§  87.  Federal  and  State  legislation. 

The  River  and  Harbor  Act  of  1890  and  the  laws  of  the  several 
States  relating  to  navigable  waters  of  the  United  States  have  a 
direct  relationship  to  each  other,  the  interpretation  of  which 
presents  a  Federal  question. x 
§  88.  Federal  land  titles. 

Where  plaintiff  in  error  claims  title  under  a  grant  from  the 
United  States,  a  Federal  question  is  presented  reviewable  by  the 
United  States  Supreme  Court.2 

(a)  But  where  the  decision  of  the  State  Court  does  not  deny 
the  validity  of  the  Federal  title,  but  dismisses  the  action  on  the 
ground  of  estoppel  such  as  laches  or  acquiescence,  a  Federal 
question  is  not  presented. 3 

(b)  The  same  rule  applies  where  the  decision  of  the  State 
Court  recognizes  the  Federal  title,  but  merely  decides  to  whom  the 
confirmation  of  title  was  made. 4 

(c)  Nor  does  the  question  of  a  mere  boundary  present  a 
Federal  question  reviewable  by  writ  of  error.5 

(d)  Where  both  sides  claim  title  under  a  common  grantor 
whose  title  from  the  United  States  is  admitted,  a  Federal  question 
is  not  presented. 6 

§  89.  Questions    under    the    banking    laws    of     the    United 
States. 
In  order  to  claim  rights  under  the  banking  laws  of  the  United 

«  U.  S.  v.  Bellingham  Bay  Boom  Co.,  176  U.  S.  211,  20  Sup.  Ct.  Rep.  343,  44  L. 
Ed.  437. 

3  French  Glenn  Live  Stock  Co.  v.  Springer,  185  U.  S.  47,  54,  22  Sup.  Ct.  Rep. 
563,  46  L.  Ed.  800;  Northern  Pacific  v.  Colburn,  164  TJ.  S.  383,  17  Sup.  Ct.  Rep. 
98,  41  L.  Ed.  479;  Stanley  v.  Schwal  by,  162  U.  S.  255,  16  Sup.  Ct.  Rep.  754,  40  L. 
Ed.  960;  Shivcly  v.  Bowlby,  152  U.  S.  335,  14  Sup.  Ct.  Rep.  548,  38  L.  Ed.  335; 
Lytle  v.  Arkansas,  22  How.  193,  16  L.  Ed.  307. 

3  State  of  Michigan  v.  Flint  &  Pere  Marquette  R.  R.  Co.,  152  U.  S.  363,  14  Sup. 
Ct.  Rep.  3S6,  38  L.  Ed.  479. 

■»  Carpenter  v.  Williams,  9  Wall.  785,  19  L.  Ed.  827. 

s  Sweringen  v.  St.  Louis,  185  U.  S.  38,  22  Sup.  Ct.  Rep.  569,  46  L.  Ed.  795. 

6  State  of  California,  ex  rel.  Hastings,  v.  Hastings  and  Jackson,  112  U.  S.  233,  5 
Sup.  Ct.  Rep.  113,  28  L.  Ed.  713. 

(164) 


Ch.  IX)     REVIEW   OF  DECISIONS   OF  HIGHEST   STATE  COURTS    §§  90-92 

States  such  rights  or  privileges  must  arise  only  from  and  by 
virtue  of  said  laws  and  not  otherwise. J 

But  where  the  power  of  a  national  bank  to  make  a  certain 
contract  is  involved,  a  Federal  question  is  thereby  preserved. 2 

A  holding  by  a  State  Court  that  certain  funds  were  never  a 
part  of  the  assets  of  a  National  Bank  does  not  raise  a  Federal 
question.3 

Nor  that  a  claim  against  a  National  Bank  was  a  valid 
obligation. 4 

§  90.  Questions  under  patent  laws,  when  validity  not  involved, 
no  Federal  question. 

Where  the  validity  of  the  patent  itself  is  not  involved  and  the 
decision  of  the  State  Court  turns  upon  a  question  of  fraud,  a 
Federal  question  is  not  in  the  case. s 
§  91.  Mining  claims  as  a  Federal  question. 

Where  a  person  complies  with  the  mining  laws  of  the  United 
States  and  claims  title  by  virtue  thereof,  he  thereby  tenders  a 
Federal  question.6 
§  92.  Questions  of  res  adjudicata,  not  Federal. 

But  where  the  question  turns  upon  the  effect  of  a  former 
adjudication  and  does  not  involve  the  validity  of  the  claim  itself 
under  the  laws  of  the  United  States,  a  Federal  question  does  not 
arise.7 

1  Seeberger  v.  McCormick,  175  U.  S.  274,  281,  20  Sup.  Ct.  Rep.  128,  44  L.  Ed. 
161;  National  Bank  v.  Louisville,  New  Albany  &  Chi.  Ry.  Co.,  1G3  U.  S.  325,  16 
Sup.  Ct.  Rep.  1033,  41  L.  Ed.  177;  Le  Sassier  v.  Kennedy,  123  U.  S.  521,  8  Sup.  Ct. 
Rep.  244,  31  L.  Ed.  262. 

'  California  Natl.  Bank  v.  Kennedy,  167  U.  S.  362,  17  Sup.  Ct.  Rep.  831,  42  L. 
Ed.  199;  McCormick  v.  National  Bank,  165  TJ.  S.  538,  17  Sup.  Ct.  Rep.  433,  41  L. 
Ed.  817. 

3  Capitol  National  Bank  v.  First  National  Bank,  172  U.  S.  425,  19  Sup.  Ct.  Rep. 
202,  43  L.  Ed.  502. 

4  Chemical  National  Bank  v.  Hartford  Deposit  Co.,  161  U.  S.  1,  16  Sup.  Ct.  Rep. 
439,  40  L.  Ed.  595. 

s  Wade  v.  Lawder,  165  U.  S.  623,  17  Sup.  Ct.  Rep.  425,  41  L.  Ed.  855. 
6  Blackburn  v.  Portland  Mining  Co.,  175  U.  S.  571, 20  Sup.  Ct.  Rep.  222,  44  L. 
Ed.  277;  Lavagino  v.  Uhlig,  198  U.  S.  443,  25  Sup.  Ct.  Rep.  716,  49  L.  Ed.  1119. 
1  Smalley  v.  Laugenour,  196  U.  S.  93, 25  Sup.  Ct.  Rep.  216,  49  L.  Ed.  401. 

(1G5) 


Ch.  IX)     REVIEW  OF  DECISIONS   OF  HIGHEST  STATE  COURTS   §§  93~94 

§  93.  Claim  under  the  bankruptcy  laws  of  the  United  States. 

A  person  who  was  not  a  party  to  the  bankruptcy  pioceedings 
cannot  claim  the  benefit  of  the  bankruptcy  laws,  and  therefore  the 
reliance  by  him  upon  the  bankiuptcy  laws  is  so  devoid  of  merit 
as  to  warrant  the  dismissal  of  the  writ  of  error  for  want  of 
jurisdiction.1 

A  purchaser  of  property  in  a  bankruptcy  proceeding  has 
sufficient  standing  to  have  the  decision  of  the  State  Court  relating 
to  the  title  to  the  property  so  purchased  by  him  reviewed. 2 

And  a  review  by  writ  of  error  may  be  had  of  a  dispute  involv- 
ing the  validity  of  a  transfer  by  a  trustee  in  bankruptcy. 3 
§  94.  No  writ  in  forma  pauperis. 

A  writ  of  error  to  a  State  Court  cannot  be  allowed  in  forma 
pauperis.     Bond  must  be  furnished.4 

1  Factors  &  Traders  Ins.  Co.  v.  Mary  Murphy,  111  U.  S.  73S,  4  Sup.  Ct.  Rep. 
679,  28  L.  Ed.  583. 

3  New  Orleans  v.  Delamore,  114  U.  S.  501,  5  Sup.  Ct.  Rep.  1009,  29  L.  Ed.  244. 

3  Traer  v.  Clews,  115  U.  S.  528,  6  Sup.  Ct.  Rep.  155, 29  L.  Ed.  467. 

4  Galloway  v.  State  National  Bank,  186  U.  S.  177, 22  Sup.  Ct.  Rep.  811, 46  L.  Ed. 
1111.    For  form  of  bond  see  appendix. 


(166) 


Ch.  X)  APPEALS  FROM  COURT  OF  CLAIMS  §§  1-2 


CHAPTER  X 

Appeals  from  Court  of  Claims — Jurisdiction  of  U.  S.  Supreme 

Court 

Sec.  Sec. 

1.  A  statutory  appeal,  §  1S1  of  Federal       7.  Written  application  for  appeal  ne- 

Judicial  Code.  cessary — Order  allowing  appeal. 

2.  Jurisdictional  amount — three  thou-       8.  Contents  of  record  on  appeal. 

sand  dollars.  9.  Time  limit  ends  at  application  to 

Not   required   when   U.  S.  is   ap-                allow  appeal. 

pellant.  10.  Findings  of  fact  and  conclusions  of 

3.  Time  to  appeal.  law  to  be  made. 

4.  Fraudulent  claim  forfeited.  11.  Parties  to  submit  findings. 

5.  Right  to  appeal.  12.  Applied    to    District    of    Columbia 

6.  Who  may  not  claim  or  prosecute.  Claims  Act. 

§  i.  A  statutory  appeal,  §  181  of  Federal  Judicial  Code. 

"The  plaintiff  or  the  United  States,  in  any  suit  brought  under  the  provi- 
sions of  the  section  last  preceding,  shall  have  the  same  right  of  appeal  as  is 
conferred  under  sections  two  hundred  and  forty-two  and  two  hundred  and  forty- 
three;  and  such  right  shall  be  exercised  only  within  the  time  and  in  the  manner 
^herein  prescribed." 

Sect.  181  of  Judicial  Code. 

§  2.  Jurisdictional  amount— three  thousand  dollars. 

The  statutes  referred  to  in  the  above  section  are  as  follows : 

"Sect.  242.  An  appeal  to  the  Supreme  Court  shall  be  allowed  on  behalf  of 
the  United  States  from  all  judgments  adverse  to  the  United  States,  and  on 
behalf  of  the  plaintiff  in  any  case  where  the  amount  in  controversy  exceeds 
three  thousand  dollars,  or  where  his  claim  is  forfeited  to  the  United  States  by 
the  judgment  of  said  Court,  as  provided  in  Section  172." 

The  jurisdictional  amount  is  not  required  where  the  U.  S.  is 
the  appellant.1 

1  United  States  v.  Davis,  131  U.  S.  36,  9  Sup.  Ct.  Rep.  657,  33  L.  Ed.  93. 

(167) 


Ch.  X)  APPEALS  FROM   COURT   OF  CLAIMS  §§  3f> 

§  3.  Time  to  appeal. 

Section  243  is  as  follows : 

"All  appeals  from  the  Court  of  Claims  shall  be  taken  within  ninety  days 
after  the  judgment  is  rendered  and  shall  be  allowed  under  such  regulations  as 
the  Supreme  Court  may  direct." 

The  foregoing  has  been  rendered  of  no  effect  by  the  provisions 
of  §  1228a  (Act  of  September  6, 191G,  C.  448,  §  6)  which  fixes  time 
for  all  appeals  to  Supreme  Court  at  three  months. 
§  4.  Fraudulent  claim  forfeited. 

"Any  person  who  corruptly  practices  or  attempts  to  practice  any  fraud 
against  the  United  States  in  the  proof,  statement,  establishment,  or  allowance 
of  any  claim  or  of  any  part  of  any  claim  against  the  United  States  shall,  ipso 
facto,  forfeit  the  same  to  the  Government;  and  it  shall  be  the  duty  of  the  Court 
of  Claims,  in  such  cases,  to  find  specifically  that  such  fraud  was  practiced  or 
attempted  to  be  practiced,  and  thereupon  to  give  judgment  that  such  claim  is 
forfeited  to  the  Government,  and  that  the  claimant  be  forever  barred  from 
prosecuting  the  same." 

§  172  Federal  Judicial  Code. 

§  5.  Right  to  appeal. 

"In  any  case  brought  in  the  Court  of  Claims  under  any  Act  of  Congress  by 
which  that  court  is  authorized  to  render  a  judgment  or  decree  against  the 
United  States,  or  against  any  Indian  tribe  or  against  any  Indians,  or  against 
any  fund  held  in  trust  by  the  United  States  for  any  Indian  tribe  or  for  any 
Indians,  the  claimant,  or  the  United  States,  or  the  tribe  of  Indians,  or  other 
party  in  interest  shall  have  the  same  right  of  appeal  as  is  conferred  under  sec- 
tions two  hundred  and  forty-two  and  two  hundred  and  forty-three;  and  such 
right  shall  be  exercised  only  within  the  time  and  in  the  manner  therein  pre- 
scribed." 

§  182  Federal  Judicial  Code. 

§  6.  Who  may  not  claim  or  prosecute. 

"No  person  shall  file  or  prosecute  in  the  Court  of  Claims  or  in  the  Supreme 
Court  an  appeal  therefrom,  any  claim  for  or  in  respect  to  which  he  or  any 
assignee  of  his  has  pending  in  any  other  court  any  suit  or  process  against  any 
person  who,  at  the  time  when  the  cause  of  action  alleged  in  such  suit  or  process 
arose,  was,  in  respect  thereto,  acting  or  professing  to  act,  mediately  or  imme- 
diately, under  the  authority  of  the  United  States." 

§  154  Federal  Judicial  Code. 

(168) 


Ch.  X)  APPEALS  FROM   COURT  OF  CLAIMS  §§  7~8 

§  7.  Written  application  for  appeal  necessary — Order  allowing 
appeal. 

"Application  for  appeal  to  the  Supreme  Court  of  the  United  States  from 
any  judgment  or  decree  of  this  court  must  be  in  writing  and  signed  by  the 
claimant  or  his  attorney  of  record  if  the  appeal  be  on  his  behalf;  or,  if  taken  by 
the  United  States,  it  must  be  signed  by  the  Attorney-General  or  the  proper 
Assistant  Attorney-General. 

"Such  application  if  made  when  the  court  is  not  in  sessions  must  be  filed  with 
the  clerk,  and  the  date  of  filing  the  same  must  be  indorsed  upon  it  and  noted 
upon  the  general  docket."1     (Rule  96  of  the  Court  of  Claims.) 

"No  order  will  be  entered  by  the  clerk  unless  it  be  directed  from  the  bench 
or  be  reduced  to  writing  and  marked  'Allowed'  by  the  chief  justice  or  one  of 
the  judges.     (Rub  98  of  the.  Court  of  Claims.) 

"The  clerk  will  not  file  any  paper  unless  it  be  properly  indorsed,  showing  the 
nature  of  same,  with  the  title  and  number  of  the  suit  and  the  name  of  the 
attorney  filing  it."     (Rule  99  of  the  Court  of  Claims.) 

§  8.  Contents  of  record  on  appeal. 

Cases  hereafter  decided  in  the  Court  of  Claims,  in  which,  by  the  act  of 
Congress,  such  appeals  are  allowable,  shall  be  heard  in  the  Supreme  Court 
upon  the  following  record,  and  none  other:1 

"  1.  A  transcript  of  the  pleadings  in  the  case,  of  the  final  judgment  or  decree 
of  the  court,  and  of  such  interlocutory  orders,  rulings,  judgments,  and  decrees 
as  may  be  necessary  to  a  proper  review  of  the  case.* 

"2.  A  finding  by  the  Court  of  Claims  of  the  facts  in  the  case,  established 
by  the  evidence,  in  the  nature  of  a  special  verdict,  but  not  the  evidence  estab- 
lishing them;  and  a  separate  statement  of  the  conclusions  of  law  upon  said 
facts  on  which  the  court  finds  its  judgment  or  decree.  The  finding  of  facts  and 
conclusions  of  law  to  be  certified  to  this  court  as  part  of  the  record."     Rule  15.4 


1  U.  S.  v.  Adams,  6  Wallace  101,  82  L.  Ed.  792;  Ex  parte  Russell,  13  Wall.  664, 
672,  20  L.  Ed.  632. 

a  The  Supervisors  v.  Durant,  9  Wall.  419,  19  L.  Ed.  733,  and  7  C.  Cls.  R.  508, 
and  Union  Pacific  R.  R.  Co.  v.  U.  S.,  116  U.  S.  R.  154,  402,  6  Sup.  Ct.  Rep.  325 
29  L.  Ed.  584;  also  opinion  of  Court  of  Claims  under  §  2  Rule  8  of  U.  S.  Sup.  Ct. 

3  Union  Pacific  Ry.  Co.  v.  United  States,  116  U.  S.  402,  6  Sup.  Ct.  Rep.  631,  29 
L.  Ed.  677;  Burr  v.  Des  Moines  N.  &  R.  Co.,  1  Wall.  99,  102,  17  L.  Ed.  561. 

4  Beach  v.  U.  S.,  226  U.  S.  243,  33  Sup.  Ct.  Rep.  20,  57  L.  Ed.  205  (17  Wall, 
xvii.);  DeGroot  v.  The  United  States,  5  Wall.  419,  18  L.  Ed.  700,  and  7  C.  Cls.  R. 
2;  Desmare  v.  The  United  States,  93  U.  S.  R.  605,  23  L.  Ed.  959,  and  12  C.  Cls. 
R.  33;  18  C.  Cls.  R.  289,  705;  Carver  v.  The  United  States,  111  U.  S.  R.  609, 
28  L.  Ed.  540,  4  Sup.  Ct.  Rep.  561;  United  States  v.  Adams,  6  Wall.  101,  18  L.  Ed. 
792,  and  7  C.  Cls.  R.  11;  U.  P.  R.  R.  Co.  v.  United  States,  116  U.  S.  154,  29  L.  Ed. 
584,  6  Sup.  Ct.  Rep.  325,  20  C.  Cls.  R.  508,  109,  26  C.  Cls.  R.  109. 

(169) 


Ch.  X)  APPEALS  FROM  COURT  OF  CLAIMS  §§  9-10 

Rule  8,  Section  5,  and  Rule  9,  Section  1,  require  that  the  re- 
cord on  appeal  in  cases  from  all  courts  must  be  filed  with  the 
clerk  of  the  Supreme  Court  and  the  case  docketed  within  thirty- 
days  from  the  allowance  of  the  appeal. 

Rule  20,  Section  1,  permits  submission  of  appeals  from  the 
Court  of  Claims  on  printed  briefs  without  oral  argument,  by 
consent  of  both  parties,  within  the  first  ninety  days  of  the  term, 
and  thereafter  within  thirty  days  after  docketing,  but  not  later 
than  April  1.  Twenty-five  copies  of  the  arguments,  signed  by 
attorneys  or  counselors  of  the  Supreme  Court,  must  first  be 
filed. 
§  9.  Time  limit  ends  at  application  to  allow  appeal. 

"In  all  cases  an  order  of  allowance  of  appeal  by  the  Court  of  Claims,  or  the 
Chief  Justice  thereof  in  vacation,  is  essential,  and  the  limitation  of  time  for 
granting  such  appeal  shall  cease  to  run  from  the  time  an  application  is  made 
for  the  allowance  of  appeal."    Rule  3. x 

§  10.  Findings  of  fact  and  conclusions  of  law  to  be  made. 

"  In  all  cases  in  which  either  party  is  entitled  to  appeal  to  the  Supreme  Court, 
the  Court  of  Claims  shall  make  and  file  their  findings  of  fact  and  their  conclu- 
sions of  law  therein,  in  open  court,  before  or  at  the  time  they  enter  judgment 
in  the  case."3     (Rule  4.) 


1  United  States  v.  Henry,  17  Wall.  405,  21  L.  Ed.  673,  9  C.  Cls.  R.  22,  and  23 
C.  Cls.  R.  1,  41. 

3  "The  statement  of  facts  on  which  this  court  will  inquire  if  there  is  or  is  not 
error  in  the  application  of  the  law  to  them  is  a  statement  of  the  ultimate  facts  or 
propositions  which  the  evidence  is  intended  to  establish,  and  not  the  evidence  on 
which  those  ultimate  facts  are  supposed  to  rest.  The  statement  must  be  sufficient 
in  itself,  without  inferences  or  comparisons,  or  balancing  of  testimony,  or  weighing 
evidence,  to  justify  the  application  of  the  legal  principles  which  must  determine 
the  case.  It  must  leave  none  of  the  functions  of  a  jury  to  be  discharged  by  this 
court,  but  must  have  all  the  sufficiency,  fullness,  and  perspicuity  of  a  special  verdict. 
If  it  requires  of  the  court  to  weigh  conflicting  testimony,  or  to  balance  admitted 
facts,  and  deduce  from  these  the  proposition  of  fact  on  which  alone  a  legal  conclusion 
can  rest,  then  it  is  not  such  a  statement  as  this  court  can  act  upon." 

Burr  v.  Des  Moines  Rail.  &  Nav.  Co.,  1  Wall.  101,  17  L.  Ed.  562;  Beach  v 
U.  S.,  226  U.  S.  243,  33  Sup.  Ct.  Rep.  20,  57  L.  Ed.  205. 

(170) 


Ch.  X)  APPEALS  FROM   COURT  OF   CLAIMS  §§  11-12 

§  ii.  Parties  to  submit  findings. 

"In  every  such  case,  each  party,  at  such  time  before  trial,  and  in  such  form 
as  the  court  may  prescribe,  shall  submit  to  it  a  request  to  find  all  the  facts 
which  the  party  considers  proven  and  deems  material  to  the  due  presentation 
of  the  case  in  the  findings  of  fact."     (Rule  5.) 

§  12.  Applied  to  District  of  Columbia  Claims  Act. 

"Ordered,  that  Rule  I,  in  reference  to  appeals  from  the  Court  of  Claims,  be, 
and  the  same  is  hereby,  made  applicable  to  appeals  in  all  cases  heretofore  or 
hereafter  decided  by  that  court  under  the  jurisdiction  conferred  by  the  act  of 
June  10,  1880,  C. 243,  'to  provide  for  the  settlement  of  all  outstanding  claims 
against  the  District  of  Columbia,  and  conferring  jurisdiction  on  the  Court  of 
Claims  to  hear  the  same,  and  for  other  purposes.'  "  (Adopted  May  7,  1883. 
Rule  6). 


(171) 


Cll.  XI)  THE  COURT  OF  CUSTOMS  APPEALS  §  1 

CHAPTER  XI 
The  Court  of  Customs  Appeals 

Sec.  Sec. 

1.  The  Statute   creating   the  Court,      14.  Attorneys. 

§  188  Federal  Judicial  Code.  15.  Process. 

2.  Court  never  closes.  16.  Review. 

3.  Executive  officer  of  Court.  17.  Assignment  of  errors. 

4.  Clerk  of  Court — powers  and  duties.  18.  Mandate. 

5.  Assistant  clerks,  etc.  19.  Calendar. 

6.  Place  for  holding  Court.  20.  Records  and  briefs. 

7.  Powers  of  the  Court.  21.  Sessions. 

8.  Jurisdiction   of    Court   of    Customs  22.  Appeals,  when  taken. 

Appeals.  23.  Amendments — Judgments. 

0.  Transfer  of  review  from  other  courts.  24.  Final  decision — Mandate. 

10.  Cases  pending  transferred.  25.  Fees  of  clerk  and  marshal. 

11.  Time  for  appeal.     Record.  26.  Arguments. 

12.  No     delay     in     hearing.     Call     of  27.  Appearances. 

calendar.  28.  Applications  for  rehearing. 

13.  The  Rules  of  the  Court.    The 

Clerk. 

§  i.  THE  STATUTE  creating  the  Court,  §  188  Federal  Judicial 
Code. 

"There  shall  be  a  United  States  Court  of  Customs  Appeals,  which  shall  con- 
sist of  a  presiding  judge  and  four  associate  judges,  each  of  whom  shall  be  ap- 
pointed by  the  President,  by  and  with  the  advice  and  consent  of  the  Senate, 
and  shall  receive  a  salary  of  seven  thousand  dollars  a  year.  The  presiding 
judge  shall  be  so  designated  in  the  order  of  appointment  and  in  the  commission 
issued  to  him  by  the  President;  and  the  associate  judges  shall  have  precedent 
according  to  the  date  of  their  commissions.  Any  three  members  of  said  court 
shall  constitute  a  quorum,  and  the  concurrence  of  three  members  shall  be  neces- 
sary to  any  decisions  thereof.  In  case  of  a  vacancy  or  of  the  temporary  in- 
ability or  disqualification,  for  any  reason,  of  one  or  two  of  the  judges  of  said 
court  the  President  may,  upon  the  request  of  the  presiding  judge  of  said  court, 
designate  any  qualified  United  States  or  circuit  district  judge  or  judges  to  act 
in  his  or  their  place;  and  such  circuit  or  district  judges  shall  be  duly  qualified 
to  so  act."     (Chapter  8,  §  188  Federal  Judicial  Code.) 

(172) 


Ch.  XI)  THE  COURT  OF  CUSTOMS   APPEALS  §§  2~4 

§  2.  Court  never  closes. 

"The  said  Court  of  Customs  Appeals  shall  always  be  open  for  the  transaction 
of  business,  and  sessions  thereof  may,  in  the  discretion  of  the  court,  be  held  in 
the  several  judicial  circuits,  and  at  such  places  as  said  court  may  from  time  to 
time  designate.  Any  judge  who,  in  pursuance  of  the  provisions  of  this  chapter, 
shall  attend  a  session  of  said  court  at  any  place  other  than  the  city  of  Wash- 
ington, shall  be  paid,  upon  his  written  and  itemized  certificate,  by  the  marshal 
of  the  district  in  which  court  shall  be  held,  his  actual  and  necessary  expenses 
of  one  stenographic  clerk  who  may  accompany  him;  and  such  payments  shall 
be  allowed  the  marshal  in  the  settlement  of  his  accounts  with  the  United  States." 
(§  189  Federal  Judicial  Code.) 

§  3.  Executive  officer  of  Court. 

"Said  court  shall  have  the  services  of  a  marshal,  with  the  same  duties  and 
powers,  under  the  regulations  of  the  court,  as  are  now  provided  for  the  marshal 
of- the  Supreme  Court  of  the  United  States,  so  far  as  the  same  may  be  applicable. 
Said  services  within  the  District  of  Columbia  shall  be  performed  by  a  marshal 
to  be  appointed  by  and  to  hold  office  during  the  pleasure  of  the  court,  who 
shall  receive  a  salary  of  three  thousand  dollars  per  annum.  Said  services  out- 
side of  the  District  of  Columbia  shall  be  performed  by  the  United  States  mar- 
shals in  and  for  the  districts  where  sessions  of  said  court  may  be  held;  and  to 
this  end  said  marshals  shall  be  marshals  of  said  court.  The  marshal  for  said 
court  of  the  District  of  Columbia  is  authorized  to  purchase,  under  the  direc- 
tion of  the  presiding  judge,  such  books,  periodicals,  and  stationery,  as  may  be 
necessary  for  the  use  of  said  court;  and  such  expenditures  shall  be  allowed  and 
paid  by  the  Secretary  of  the  Treasury  upon  claim  duly  made  and  approved  by 
said  presiding  judge."     (§  190  Federal  Judicial  Code.) 

§  4.  Clerk  of  Court — powers  and  duties. 

"The  court  shall  appoint  a  clerk,  whose  office  shall  be  in  the  city  of  Washing- 
ton, District  of  Columbia,  and  who  shall  perform  and  exercise  the  same  duties 
and  powers  in  regard  to  all  matters  within  the  jurisdiction  of  said  court  as  are 
now  exercised  and  performed  by  the  clerk  of  the  Supreme  Court  of  the  United 
States,  so  far  as  the  same  may  be  applicable.  The  salary  of  the  clerk  shall  be 
three  thousand  five  hundred  dollars  per  annum,  which  sum  shall  be  in  full 
payment  for  all  services  rendered  by  such  clerk;  and  all  fees  of  any  kind  what- 
ever, and  all  costs  shall  be  by  him  turned  into  the  United  States  Treasury. 
Said  clerk  shall  not  be  appointed  by  the  court  or  any  judge  thereof  as  a  commis- 
sioner, master,  receiver,  or  referee.  The  costs  and  fees  in  said  court  to  be 
fixed  and  established  by  said  court  in  a  table  of  fees  to  be  adopted  and  approved 
by  the  Supreme  Court  of  the  United  States  within  four  months  after  the  organiza- 
tion of  said  court:  Provided,  that  the  costs  and  fees  so  fixed  shall  not,  with 

(173) 


Ch.  XI)  THE  COURT  OF   CUSTOMS  APPEALS  §§  5-7 

respect  to  any  item,  exceed  the  costs  and  fees  charged  in  the  Supreme 
Court  of  the  United  States:  and  the  same  shall  be  expended,  accounted  for, 
and  paid  over  to  the  Treasury  of  the  United  States."  (§  191  Federal  Judicial 
Code.) 

§  3.  Assistant  clerks,  etc. 

"  In  addition  to  the  clerk,  the  court  may  appoint  an  assistant  clerk  at  a  salary 
of  two  thousand  dollars  per  annum,  five  stenographic  clerks  at  a  salary  of  one 
thousand  six  hundred  dollars  per  annum  each,  one  stenographic  reporter  at  a 
salary  of  two  thousand  five  hundred  dollars  per  annum,  and  a  messenger  at  a 
salary  of  eight  hundred  and  forty  dollars  per  annum,  all  payable  in  equal  monthly 
installments,  and  all  of  whom,  including  the  clerk,  shall  hold  office  during  the 
pleasure  of  and  perform  such  duties  as  are  assigned  them  by  the  court.  Said 
reporter  shall  prepare  and  transmit  to  the  Secretary  of  the  Treasury  once  a 
week  in  time  for  publication  in  the  Treasury  Decisions  copies  of  all  decisions 
rendered  to  that  date  by  said  court,  and  prepare  and  transmit,  under  the  direc- 
tion of  said  court,  at  least  once  a  year,  reports  of  said  decisions  rendered  to  that 
date,  constituting  a  volume,  which  shall  be  printed  by  the  Treasury  Department 
in  such  numbers  and  distributed  or  sold  in  such  manner  as  the  Secretary  of  the 
Treasury  shall  direct."     (§  192  Federal  Judicial  Code.) 

§  6.  Place  for  holding  Court. 

"The  marshal  of  said  court  for  the  District  of  Columbia  and  the  marshals 
of  the  several  districts  in  which  said  Court  of  Customs  Appeals  may  be  held 
shall,  under  the  direction  of  the  Attorney-General,  and  with  his  approval,  pro- 
vide such  rooms  in  the  public  buildings  of  the  United  States  as  may  be  necessary 
for  said  court:  Provided,  That  in  case  proper  rooms  cannot  be  provided  in  such 
buildings,  then  the  said  marshals,  with  the  approval  of  the  Attorney-General, 
may  from  time  to  time,  lease  such  rooms  as  may  be  necessary  for  said  court. 
The  bailiffs  and  messengers  of  said  court  shall  be  allowed  the  same  compensation 
for  their  respective  services  as  are  allowed  for  similar  services  in  the  existing 
district  courts.  In  no  case  shall  said  marshals  secure  other  rooms  than  those 
regularly  occupied  by  existing  district  courts,  or  other  public  officers,  except 
where  such  cannot,  by  reason  of  actual  occupancy  or  use,  be  occupied  or  used 
by  said  court  of  Customs  Appeals.     (§  193  Federal  Judicial  Code.) 

§  7.  Powers  of  the  Court. 

"  The  said  Court  of  Customs  Appeals  shall  be  a  court  of  record,  with  jurisdic- 
tion as  in  this  chapter  established  and  limited.  It  shall  prescribe  the  form  and 
style  of  its  seal,  and  the  form  of  its  writs  and  other  process  and  procedure,  and 
exercise  such  powers  conferred  by  law  as  may  be  conformable  and  necessary  to 

(174) 


Ch.  XI)  THE   COURT  OF   CUSTOMS   APPEALS  §§  8~9 

the  exercise  of  its  jurisdiction.  It  shall  have  power  to  establish  all  rules  and 
regulations  for  the  conduct  of  the  business  of  the  court,  and  as  may  be  needful 
for  the  uniformity  of  decisions  within  its  jurisdiction  as  conferred  by  law.  It 
shall  have  power  to  review  any  decision  or  matter  within  its  jurisdiction,  and 
may  affirm,  modify,  or  reverse  the  same  and  remand  the  case  with  such  orders 
as  may  seem  to  it  proper  in  the  premises,  which  shall  be  executed  accordingly." 
(§  194  Federal  Judicial  Code.) 

§  8.  Jurisdiction  of  Court  of  Customs  Appeals. 

"The  Court  of  Customs  Appeals  established  by  this  chapter  shall  exercise 
exclusive  appellate  jurisdiction  to  review  by  appeal,  as  herein  provided,  final  deci- 
sions by  a  Board  of  General  Appraisers  in  all  cases  as  to  the  construction  of  the 
law  and  the  facts  respecting  the  classification  of  merchandise  and  the  rate  of 
duty  imposed  thereon  under  such  classification,  and  the  fees  and  charges  con- 
nected therewith,  and  all  appealable  questions  as  to  the  jurisdiction  of  said 
board  and  all  appealable  questions  as  to  the  laws  and  regulations  governing 
the-  collection  of  the  customs  revenues;  and  the  judgments  and  decrees  of  said 
Court  of  Customs  Appeals  shall  be  final  in  all  such  cases."  (§  195  Federal 
Judicial  Code.) 

§  9.  Transfer  of  review  from  other  courts. 

"After  the  organization  of  said  court  no  appeal  shall  be  taken  or  allowed  from 
any  Board  of  United  States  General  Appraisers  to  any  other  court,  and  no 
appellate  jurisdiction  shall  thereafter  be  allowed  or  exercised  by  any  other 
courts  in  cases  decided  by  said  Board  of  United  States  General  Appraisers; 
but  all  appeals  allowed  by  law  from  such  Board  of  General  Appraisers  shall  be 
subject  to  revise  only  in  the  Court  of  Customs  Appeals  hereby  established, 
according  to  the  provisions  of  this  chapter:  Provided,  That  nothing  in  this 
chapter  shall  be  deemed  to  deprive  the  Supreme  Court  of  the  United  States  of 
jurisdiction  to  hear  and  determine  all  customs  cases  which  have  heretofore 
been  certified  to  said  court  from  the  United  States  circuit  courts  of  appeals 
on  applications  for  writs  of  certiorari  or  otherwise,  nor  to  review  by  writ  of 
certiorari  any  customs  case  heretofore  decided  or  now  pending  and  hereafter 
decided  by  any  circuit  court  of  appeals,  provided  application  for  said  writ  be 
made  within  six  months  after  August  fifth,  nineteen  hundred  and  nine :  Provided, 
That  all  customs  cases  decided  by  a  circuit  or  district  court  of  the  United  States 
or  a  court  of  a  Territory  of  the  United  States  prior  to  said  date  above  mentioned, 
and  which  have  not  been  removed  from  said  courts  by  appeal  or  writ  of  errors, 
and  all  such  cases  theretofore  submitted  for  decision  in  said  courts  remaining 
undecided  may  be  reviewed  on  appeal  at  the  instance  of  either  party  by  the 
United  States  Court  of  Customs  Appeals,  provided  such  appeal  be  taken  within 
one  year  from  the  date  of  the  entry  of  the  order,  judgment,  or  decrees  sought 
to  be  reviewed."     (§  196  Federal  Judicial  Code.) 

(175) 


Ch.  XI)  THE  COURT   OF   CUSTOMS   APPEALS  §§  10-12 

§  io.  Cases  pending  transferred. 

"Immediately  upon  the  organization  of  the  Court  of  Customs  Appeals,  all 
cases  within  the  jurisdiction  of  that  court  pending  and  not  submitted  for  deci- 
sion in  any  of  the  United  States  circuit  courts  of  appeals,  United  States  circuit, 
territorial,  or  district  courts,  shall,  with  the  record  and  samples  therein,  be 
certified  by  said  courts  to  said  Court  of  Customs  Appeals  for  further  proceed- 
ings in  accordance  herewith:  Provided,  That  where  orders  for  the  taking  of 
further  testimony  before  referee  have  been  made  in  any  of  such  cases,  the  taking 
of  such  testimony  shall  be  completed  before  such  certification."  (§  197 
Federal  Judicial  Code.) 

§  ii.  Time  for  appeal.    Record. 

"If  the  importer,  owner,  consignee,  or  agent  of  any  imported  merchandise, 
or  the  collector  or  Secretary  of  the  Treasury,  shall  be  dissatisfied  with  the  deci- 
sion of  the  Board  of  General  Appraisers  as  to  the  construction  of  the  law  and 
the  facts  respecting  the  classification  of  such  merchandise  and  the  rate  of  duty 
imposed  thereon  under  such  classification,  or  with  any  other  appealable  decision 
of  said  board,  they,  or  either  of  them,  may,  within  sixty  days  next  after  the 
entry  of  such  decree  or  judgment,  and  not  afterwards,  apply  to  the  Court  of 
Customs  Appeals  for  a  review  of  the  questions  of  law  and  fact  involved  in  such 
decision :  Provided,  That  in  Alaska  and  in  the  insular  and  other  outside  posses- 
sions of  the  United  States  ninety  days  shall  be  allowed  for  making  such  applica- 
tion to  the  Court  of  Customs  Appeals.  Such  application  shall  be  made  by 
filing  in  the  office  of  the  clerk  of  said  court  a  concise  statement  of  errors  of  law 
and  fact  complained  of;  and  a  copy  of  such  statement  shall  be  served  on  the 
collector,  or  on  the  importer,  owner,  consignee,  or  agent,  as  the  case  may  be. 
Thereupon  the  court  shall  immediately  order  the  Board  of  General  Appraisers 
to  transmit  to  said  court  the  record  and  evidence  taken  by  them,  together  with 
the  certified  statement  of  facts  involved  in  the  case  and  their  decision  thereon; 
and  all  the  evidence  taken  by  and  before  said  board  shall  be  competent  evidence 
before  said  Court  of  Customs  Appeals.  The  decision  of  said  Court  of  Custom 
Appeals  shall  be  final,  and  such  cause  shall  be  remanded  to  said  Board  of  General 
Appraisers  for  further  proceedings  to  be  taken  in  pursuance  of  such  determina- 
tion."    (§  198  Federal  Judicial  Code.) 

§  12.  No  delay  in  hearing.     Call  of  calendar. 

"Immediately  upon  the  receipt  of  any  record  transmitted  to  said  court  for 
determination,  the  clerk  thereof  shall  place  the  same  upon  the  calendar  for 
hearing  and  submission;  and  such  calendar  shall  be  called  and.  all  cases  thereon 
submitted,  except  for  good  cause  shown,  at  least  once  every  sixty  days:  Pro- 
vided, that  such  calendar  need  not  be  called  during  the  months  of  July  and 
August  of  any  year."     (§  199  Federal  Judicial  Code.) 

(17G) 


Ch.  XI)  THE  COURT   OF   CUSTOMS   APPEALS  §§  13-15 

§  13.  The  Rules  of  the  Court.    The  Clerk. 

"Rule  1.  The  clerk  of  this  court  shall  keep  his  office  in  the  city  of  Washing- 
ton. He  shall  not  practice  either  as  an  attorney  or  counselor  of  this  court 
while  he  shall  continue  to  be  clerk.  He  shall  indorse  on  every  paper  the  date 
on  which  the  same  is  filed  and  shall  not  permit  any  original  paper,  document, 
or  exhibit  to  be  taken  from  the  court  room  or  from  the  office  without  an  order 
from  the  court  or  permission  of  one  of  the  judges  thereof.  But  the  parties 
interested  in  any  matter  pending  before  the  court  may  have  full  access  to  the 
records  in  such  matters  in  the  office  of  the  clerk  and  may  take  copies  of  all 
papers  filed  therein." 

§  14.  Attorneys. 

"Rule  2.  Parties  shall  be  entitled  to  be  represented  in  this  court  by  attor- 
ney. Any  attorney  who  is  entitled  to  practice  in  the  Supreme  Court  of  the 
United  States  or  in  the  circuit  courts  of  appeals  or  circuit  courts  of  the  United 
States  or  in  the  court  of  last  resort  in  any  State  or  Territory  may  be  admitted 
to  practice  in  and  have  his  name  enrolled  as  an  attorney  of  this  court  by  the 
clerk  upon  filing  a  recommendation  of  any  justice  of  the  Supreme  Court  of  the 
United  States,  United  States  circuit  or  district  judge,  or  a  judge  of  the  court 
of  last  resort  of  the  State  or  Territory  in  which  such  attorney  may  reside  at  the 
time  of  his  application  for  admission  to  this  court,  or  upon  motion  by  an  attor- 
ney of  this  court.  Prior  to  the  issuance  of  the  certificate  of  admission  the  at- 
torney shall  take  and  subscribe  the  following  oath  of  office,  which  shall  be  filed 
with  the  clerk: 

"  'I, ,  do  solemnly,  swear  [or  affirm]  that  I  will  demean  my- 
self, as  an  attorney  and  counselor  of  this  court,  uprightly  and  according  to  law, 
and  that  I  will  support  the  Constitution  of  the  United  States.'  " 

§  15.  Process. 

"Rule  3.  Processes  to  be  issued  from  this  court  shall  be  of  such  form  and 
style  as  is  in  use  in  the  Supreme  Court  of  the  United  States.  There  shall  also 
be  a  process  to  be  issued  to  the  Board  of  General  Appraisers,  which  shall  be 
called  a  mandate,  and  shall  in  terms  direct  the  transmission  to  this  court  in 
proper  cases  of  proceedings  taken  and  had  before  said  Board  of  General  Apprais- 
ers. All  writs  shall  be  attested  in  the  name  of  the  presiding  judge,  shall  be 
signed  by  the  clerk  of  the  court,  with  the  seal  of  the  court  attached,  and  shall 
be  made  returnable  30  days  from  the  date  thereof;  provided  that  the  time  fixed 
for  the  return  of  such  record  may  be  extended,  upon  application  to  the  court,  or 
a  judge  thereof,  at  chambers,  and  upon  good  cause  shown,  or  the  time  may  be 
extended  by  stipulation,  which  shall  be  made  expressly  subject  to  the  future 
orders  of  the  court." 

12  (177) 


Ch.  XI)  THE  COURT  OF  CUSTOMS  APPEALS  §§  1G-19 

§  1 6.    Review. 

"Rule  4.  Any  party  feeling  aggrieved  at  any  decision  of  the  Board  of 
General  Appraisers  and  who  may  be  entitled,  under  the  provisions  of  Chapter 
8  of  the  act  entitled  'An  act  to  codify,  revise,  and  amend  the  laws  relating  to 
the  judiciary,'  approved  March  3,  1911,  or  any  amendment  thereof,  to  have 
a  review  of  said  decision,  may,  within  the  time  fixed  by  said  act  or  any  amend- 
ment thereof,  apply  to  this  court  for  a  review  of  the  questions  of  law  and  fact 
included  therein." 

§  17.  Assignment  of  errors. 

"  Rule  5.  The  party  seeking  a  review  of  any  appealable  decision  of  the  Board 
of  General  Appraisers  shall  file  with  the  clerk,  in  duplicate,  a  concise  statement 
of  the  errors  of  law  and  fact  complained  of,  and  a  copy  of  such  statement  shall 
be  served  on  the  collector  or  on  the  importer,  owner,  consignee,  agent,  or  attor- 
ney, as  the  case  may  be,  either  by  mail  or  by  delivering  the  same  personally 
to  the  party  to  be  served  or  to  his  attorney,  who  shall  have  regularly  appeared 
before  said  Board  of  General  Appraisers  on  or  before  the  date  of  such  applica- 
tion. Such  service,  in  case  of  mailing,  shall  be  by  depositing  in  a  post  office  a 
copy  of  such  statement  in  a  sealed  envelope  plainly  addressed  to  the  party  or 
attorney  to  be  served  at  his  place  of  business  or  residence,  with  postage  thereon 
fully  prepaid.  In  all  cases  where  the  United  States  is  not  the  appellant  such 
application  for  review  shall  be  accompanied  by  the  filing  fee  of  $Q  and  by  a  bond 
for  costs  in  a  sum  not  less  than  $25." 

§  18.  Mandate. 

"Rule  6.  Upon  the  filing  of  such  application  for  review,  a  mandate  shall 
issue  to  said  Board  of  General  Appraisers  directing  said  board  to  transmit  to 
said  court  the  records  and  evidence  taken  by  them,  together  with  a  certified 
statement  of  the  facts  involved  in  the  case  and  the  decision  thereon,  together 
with  all  samples  and  exhibits  used  before  them." 

§  19.  Calendar. 

"Rule  7.  All  cases  transmitted  to  this  court,  whether  removed  from  the 
Board  of  General  Appraisers  in  response  to  the  mandate  of  this  court  or  by  the 
transfer  from  the  United  States  circuit  courts  of  appeals,  United  States  circuit, 
territorial,  or  district  courts,  shall,  upon  receipt  of  the  record  by  the  clerk,  be 
placed  upon  the  calendar  in  the  order  in  which  they  are  received,  and  such  cases 
shall  stand  for  hearing  and  submission  in  that  order  without  notice;  provided, 
the  hearing  of  any  case  may  be  postponed  for  good  cause  shown.  On  motion 
of  either  party,  with  due  notice  to  the  other  side,  the  court  may  advance  on  the 
calendar  cases  that  are  of  unusual  importance,  or  whenever  other  considerations 
of  public  policy  make  such  action  appear  desirable." 

(17S) 


Ch.  XI)  THE  COURT  OF  CUSTOMS  APPEALS  §§  20-23 

§  20.  Records  and  briefs. 

"Rule  8.  The  appellant  shall,  within  14  days  from  the  filing  of  such  return, 
or  within  such  further  time  as  may  be  allowed  by  the  court  or  a  judge  thereof 
at  chambers,  deposit  with  the  clerk  a  sum  sufficient  to  meet  the  cost  of  printing 
the  record.  As  soon  as  the  record  is  printed  the  clerk  shall  retain  at  least  15 
copies  for  the  use  of  the  court  and  furnish  not  less  than  10  copies  to  the  appel- 
lant, who  shall  serve  not  less  than  three  copies  on  the  appellee  or  his  counsel. 

"Within  fourteen  days  after  the  receipt  of  the  printed  record,  appellant 
shall  serve  on  the  appellee  or  his  counsel  not  less  than  three  copies  of  his  brief, 
and  within  fourteen  days  thereafter  the  appellee  shall  serve  not  less  than  three 
printed  copies  of  his  brief  with  the  appellant  or  his  counsel.  Both  sides  shall 
promptly  file  not  less  than  15  copies  of  their  briefs  with  the  clerk.  Extension 
of  the  time  for  filing  briefs  for  a  period  not  exceeding  thirty  days  may  be  made 
by  stipulation,  which  shall  become  effective  when  filed  with  the  clerk. 

"All  records  and  briefs  for  the  use  of  this  court  shall  have  a  suitable  cover 
containing  the  title  of  the  court  and  cause.  Records  shall  be  properly  indexed 
and  printed  under  the  direction  of  the  clerk  of  the  court.  The  size  of  the  pages 
of  the  records  and  briefs  shall  be  9X  inches  by  6H  inches." 

§  21.  Sessions. 

"Rule  9.  The  court  will  convene  during  sessions  at  10  A.m.,  and  will  con- 
tinue its  sessions  until  all  cases  on  its  calendar  in  readiness  for  hearing  are  dis- 
posed of.  All  motions  shall  be  presented  at  the  opening  of  court  on  Tuesdays, 
but  when  the  court  is  in  session  for  hearing  causes  they  may  be  presented  at 
the  opening  of  court  on  any  day  of  the  session." 

§  22.  Appeals,  when  taken. 

"Rule  10.  The  court  shall  be  open  for  business  on  each  business  day  of 
the  year  for  the  purpose  of  receiving  applications  for  appeal,  and  on  such  days 
writs  directed  to  the  Board  of  General  Appraisers  may  issue  as  of  course,  at- 
tested in  the  name  of  the  presiding  judge  and  signed  by  the  clerk  or  assistant 
clerk.  In  case  of  a  vacancy  in  the  office  of  the  presiding  judge,  they  may  be 
attested  in  the  name  of  the  next  judge  in  the  order  of  precedence  as  acting 
presiding  judge." 

§  23.  Amendments — Judgments. 

"Rule  11.  The  court  may,  in  furtherance  of  justice,  permit  amendments 
to  processes  or  proceedings  in  any  case,  and  on  final  hearing  may  affirm,  reverse, 
or  modify  any  ruling,  decision,  or  conclusion  of  the  Board  of  General  Appraisers, 
or  may  reverse  and  remand  for  new  trial  or  other  appropriate  proceeding." 

(179) 


Ch.  XI)  THE  COURT  OF  CUSTOMS  APPEALS  §§  24-27 

§  24.  Final  decision — Mandate. 

"Rule  12.  At  the  expiration  of  thirty  days  after  decision  by  the  court,  the 
Court  shall  issue  its  mandate  to  the  Board  of  General  Appraisers  for  such  further 
proceedings  as  shall  be  proper  to  be  taken  in  pursuance  of  such  deter- 
mination." 


§  25.  Fees  of  clerk  and  marshal. 

"Rule  13.  The  fees  of  the  clerk  of  the  court  shall  be  $6  in  each  case.  No 
fee  shall  be  exacted  in  cases  on  appeal  to  other  Federal  courts  and  transferred 
to  this  court  for  final  determination.  There  shall  be  paid  for  each  certificate 
of  admission  of  an  attorney  to  practice,  $1 ;  and  for  making  or  copying  any  re- 
cord or  other  paper  and  certifying  the  same,  15  cents  per  folio  of  100  words. 
An  amount  sufficient  to  cover  the  cost  of  printing  the  record  shall  be  deposited 
with  the  clerk  on  his  demand,  provided  that  when  an  appeal  is  taken  by  the 
United  States  no  payment  of  fees  shall  be  required.  In  all  other  cases  fees  shall 
be  paid  in  advance. 

"  The  fees  and  costs  to  be  allowed  the  marshal  shall  be,  and  hereby  are,  fixed 
the  same  as  those  allowed  the  marshal  of  the  Supreme  Court  of  the  United 
States." 

§  26.  Arguments. 

"Rule  14.  Arguments  shall  be  limited  to  one  hour  on  a  side,  and  not  more 
than  two  counsel  on  a  side  shall  be  heard  in  any  case  except  by  special  order 
of  the  court.  The  time  for  oral  argument  may  be  extended  in  the  discretion 
of  the  court." 


§  27.  Appearances. 

"Rule  15.  It  will  not  be  necessary  for  the  Assistant  Attorney-General  in 
charge  of  customs  cases  to  file  a  notice  of  appearance  in  this  court  or  to  serve 
such  notice  on  opposing  attorneys.  Where  the  appellant  is  a  protestant,  if 
the  petition  for  review  is  filed  by  a  member  of  the  bar  of  this  court,  no  separate 
appearance  as  attorney  will  be  required,  but  a  notice  of  appearance  shall  be 
served  on  the  Assistant  Attorney-General  unless  such  appellant's  attorney 
represented  the  importer  before  the  Board  of  General  Appraisers.  Where  the 
United  States  is  the  appellant  the  attorneys  for  the  appellee  shall  file  a  notice 
of  appearance  in  this  court  and  serve  a  copy  of  such  notice  on  the  Assistant 
Attorney-General." 

(180) 


Ch.  XI)  THE  COURT  OF  CUSTOMS  APPEALS  §  28 

§  28.  Applications  for  rehearing. 

"Rule  16.  No  application  for  rehearing  will  be  considered  by  the  court 
unless  the  moving  party,  at  as  early  a  date  as  may  be  practicable  and  within  30 
days  after  decision  unless  further  time  be  granted,  shall  cause  any  papers  upon 
which  it  is  based,  together  with  his  reasons  for  granting  the  same,  to  be  printed 
and  12  copies  thereof  filed  with  the  clerk  of  this  court,  together  with  proof  that 
a  copy  thereof  has  been  served  upon  counsel  for  the  opposing  party.  The  op- 
posing party  may  at  any  time  within  10  days  thereafter  file  with  the  clerk  of 
the  court  his  objections  to  the  granting  of  the  application,  serve  a  copy  thereof 
upon  the  moving  party,  and  the  question  shall  thereupon  be  deemed  submitted 
for  decision.'* 


(181) 


Ch.  XII)         APPEAL  FROM   VARIOUS  TERRITORIAL  COURTS  §  1 

CHAPTER  XII 
Appeal  and  Error  from  Various  Territorial  Courts 

Sec.  Sec. 

1.  From  Court  of  Appeals  of  District  of     6.  Time   for   appeal   and  error — Porto 

Columbia.     Limit  of  jurisdiction.  Rico. 

2.  Appeals  and  writs  of  error  from  District     7.  From  the  Supreme  Court  of  Philip- 

Courts  of  Porto  Rico  and  Hawaii.  pine    Islands.     Procedure    limited 

3.  Jurisdiction  of  the  U.  S.  Circuit  Court  to  certiorari. 

of  Appeals.  8.  Special    provisions   as   to   courts   of 

4.  Appeals  and  writs  of  error  direct  to  Alaska. 

Supreme  Court.  9.  Appeals  and  writs  of  error  from  Dis- 

5.  Appeals    and    writs    of    error    from  trict  Court  of  Alaska  direct  to  the 

Supreme  Court  of  Porto  Rico  and  Supreme  Court. 

Hawaii — Time. 

§  i.  From  Court  of  Appeals  of  District  of  Columbia.    Limit 
of  jurisdiction  of  U.  S.  Supreme  Court. 

Sec.  250  of  the  Federal  Judicial  Code  provides : 

"Any  final  judgment  or  decree  of  the  court  of  appeals  of  the  District  of  Colum- 
bia may  be  reexamined  and  affirmed,  reversed  or  modified  by  the  Supreme 
Court  of  the  United  States,  upon  writ  of  error  or  appeal,  in  the  following  cases: 

"First.  In  cases  in  which  the  jurisdiction  of  the  trial  court  is  in  issue;  but 
when  any  such  case  is  not  otherwise  reviewable  in  said  Supreme  Court,  then  the 
question  of  jurisdiction  alone  shall  be  certified  to  said  Supreme  Court  for 
decision. 

" Second.    In  prize  cases. 

"  Third.  In  cases  involving  the  construction  or  application  of  the  Constitu- 
tion of  the  United  States,  or  the  constitutionality  of  any  law  of  the  United  States 
or  the  validity  or  construction  of  any  treaty  made  under  its  authority. 

"  Fourth.  In  cases  in  which  the  constitution  or  any  law  of  a  state  is  claimed  to 
be  in  contravention  to  the  Constitution  of  the  United  States. 

"  Fifth.  In  cases  in  which  the  validity  of  any  authority  exercised  under  the 
United  States,  or  the  existence  or  scope  of  any  power  or  duty  of  an  officer  of  the 
United  States  is  drawn  in  question. 

"Sixth.  In  cases  in  which  the  construction  of  any  law  of  the  United  States 
is  drawn  in  question  by  the  defendant. 

"Except  as  provided  in  the  next  succeeding  section,  the  judgments  and  decrees 
of  said  court  of  appeals  shall  be  final  in  all  cases  arising  under  the  patent  laws, 
copyright  laws,  revenue  laws,  the  criminal  laws,  and  in  admiralty  cases;  and, 

(182) 


Ch.  XII)         APPEAL  FROM   VARIOUS  TERRITORIAL   COURTS  §  2 

except  as  provided  in  the  next  succeeding  section,  the  judgments  and  decrees  of 
said  court  of  appeals  shall  be  final  in  all  cases  not  reviewable  as  hereinbefore 
provided. 

"Writs  of  error  and  appeals  shall  be  taken  within  the  same  time,  in  the  same 
manner,  and  under  the  same  regulations  as  writs  of  error  and  appeals  are  taken 
from  the  circuit  court  of  appeals  to  the  Supreme  Court  of  the  United  States.  "x 

§  2.  Appeals  and  Writs  of  Error  from  District  Courts  of  Porto 
Rico  and  Hawaii. 

Appeals  and  writs  of  error  from  the  final  decisions  of  the  Dis- 
trict Courts  of  Porto  Rico  and  Hawaii  in  all  cases  other  than  those 
in  which  appeals  and  writs  of  error  may  be  taken  direct  to  the 
United  States  Supreme  Court  must  be  taken  to  the  following 
United  States  Circuit  Courts  of  Appeals: 

1 36  Stat.  L.  1159. 

In  the  recent  case  of  McGowan  v.  Parish,  237  U.  S.  285,  289,  290,  35  Sup.  Ct. 
Rep.  543, 59  L.  Ed.  955,  961,  the  Court  construed  the  above  section  250  as  follows: 

- '  Section  250  allows  a  review  by  this  court  of  the  final  judgments  or  decrees  of  the 
Court  of  Appeals  of  the  District  of  Columbia  upon  writ  of  error  or  appeal  in  six 
classes  of  cases.  The  first  is:  'Cases  in  which  the  jurisdiction  of  the  trial  court  is  in 
issue ;  but  when  any  such  cases  not  otherwise  reviewable  in  said  Supreme  Court,  then 
the  question  of  jurisdiction  alone  shall  be  certified  to  said  Supreme  Court  for  decision. ' 
In  the  remaining  five  classes  of  cases  the  section  imposes  no  similar  restriction  upon 
the  scope  of  the  review.  In  this  respect,  the  section  is  analogous  to  sec.  238  (36  Stat. 
L.  1157,  Chap.  231,  Comp.  Stat.  1913,  Sec.  1215),  which  regulates  direct  appeals  and 
writs  of  error  from  the  district  courts  of  the  United  States.  Under  that  section  it  is 
held  that,  in  cases  other  than  those  that  raise  alone  the  question  of  the  jurisdiction 
of  the  district  court,  the  appellate  review  by  this  court  is  general.  Siler  v.  L.  &  N.  R. 
Co.,  213  U.  S.  175,  191,  53  L.  Ed.  753,  757, 29  Sup.  Ct.  Rep.  451;  Michigan  C.  R.  Co. 
v.  Vreeland,  227  U.  S.  59,  57,  63  L.  Ed.  417, 419,  33  Sup.  Ct.  Rep.  192;  Ann.  Cas.  1914, 
C.  176;  Singer  Mach.  Co.  v.  Brickell,  233  U.  S.  204,  312,  316,  58  L.  Ed.  974,  978,  979, 
34  Sup.  Ct.  Rep.  493.  The  same  rule  obtains  in  cases  coming  here  from  a  district 
court  under  section  266,  Judicial  Code,  where  the  jurisdiction  of  that  court  is  invoked 
upon  constitutional  grounds  and  a  direct  appeal  is  allowed.  Ohio  Tax  Cases,  232 
U.  S.  576,  586,  58  L.  Ed.  738,  743,  34  Sup.  Ct.  Rep.  372;  Louisville  &  N.  R.  Co.  v. 
Finn,  235  U.  S.  601,  604,  ante  379,  382,  35  Sup.  Ct.  Rep.  146.  A  similar  rule  must  be 
applied  to  appeals  and  writs  of  error  taken  under  section  250,  and  in  the  present  case 
our  jurisdiction,  properly  invoked  upon  a  substantial  ground  specified  in  the  section, 
other  than  a  question  of  jurisdiction  covered  by  its  first  clause,  extends  to  the  deter- 
mination of  all  questions  presented  by  the  record,  irrespective  of  the  disposition  that 
may  be  made  of  the  question  respecting  Rev.  Stat.  §3477,  or  whether  it  is  found 
necessary  to  decide  that  question  at  all. " 

(183) 


Ch.  XII)         APPEAL  FROM    VARIOUS   TERRITORIAL  COURTS  §§  3-4 

(a)  From  the  District  Courts  of  Porto  Rico  to  the  United 
States  Circuit  Court  of  Appeals  for  the  1st  Circuit.1 

(b)  From  the  District  Courts  of  Hawaii  to  the  United  States 
Circuit  Court  of  Appeals  for  the  9th  Circuit. 2 

§  3.  Jurisdiction  of  the  U.  S.  Circuit  Court  of  Appeals. 

By  the  Act  of  January  28,  1915,  amending  sections  one  hun- 
dred and  twenty-eight,  two  hundred  and  thirty-eight,  and  two 
hundred  and  forty-six  of  the  Federal  Judicial  Code,  Act  of  March 
3,  1911,  it  is  provided  as  follows: 

"Sec.  128.  The  circuit  courts  of  appeals  shall  exercise  appellate  jurisdiction 
to  review  by  appeal  or  writ  of  error  final  decisions  in  the  district  courts  including 
the  United  States  district  court  for  Hawaii  and  the  United  States  district  court 
for  Porto  Rico,  in  all  cases  other  than  those  in  which  appeals  and  writs  of  error 
may  be  taken  direct  to  the  Supreme  Court,  as  provided  in  section  two  hundred 
and  thirty-eight,  unless  otherwise  provided  by  law;  and,  except  as  provided  in 
sections  two  hundred  and  thirty-nine  and  two  hundred  and  forty,  the  judgments 
and  decrees  of  the  circuit  courts  of  appeals  shall  be  final  in  all  cases  in  which  the 
jurisdiction  is  dependent  entirely  upon  the  opposite  party  to  the  suit  or  contro- 
versy being  aliens  and  citizens  of  the  United  States  or  citizens  of  different  states; 
also,  in  all  cases  arising  under  the  patent  laws,  under  the  trademark  laws,  under 
the  copyright  laws,  under  the  revenue  laws,  and  under  the  criminal  laws,  and  in 
admiralty  cases. "  3 

§  4.  Appeals  and  writs  of  error  direct  to  Supreme  Court. 

"Sec.  238.  Appeals  and  writs  of  error  may  be  taken  from  the  district  courts, 
including  the  United  States  district  court  for  Hawaii  and  the  United  States 
district  court  for  Porto  Rico,  direct  to  the  Supreme  Court  in  the  following  cases: 
In  any  case  in  which  the  jurisdiction  of  the  court  is  in  issue,  in  which  case  the 
question  of  jurisdiction  alone  shall  be  certified  to  the  Supreme  Court  from  the 
court  below  for  decision;  from  the  final  sentences  and  decrees  in  prize  causes;  in 
any  case  that  involves  the  construction  or  application  of  the  Constitution  of  the 
United  States;  in  any  case  La  which  the  constitutionality  of  any  law  of  the  United 
States  or  the  validity  or  construction  of  any  treaty  made  under  its  authority 
is  drawn  in  question;  and  in  any  case  in  which  the  constitution  or  law  of  a  State 
is  claimed  to  be  in  contravention  of  the  Constitution  of  the  United  States. " 4 


1  Sec.  1  of  Act  of  January  28, 1915,  Ch.  22. 

3  Sec.  116  Fed.  Jud.  Code,  Act  Mar.  3,  1911. 

3  See  by  analogy  Chap.  VI.  of  this  book  as  applicable  to  appeals  and  error  from 
the  courts  of  Porto  Rico  and  Hawaii. 

*  See  by  analogy  Chap.  V.  of  this  book  "Appeals  and  Error  Direct  to  Supreme 
Court." 

(184) 


Ch..  XII)         APPEAL   FROM   VARIOUS  TERRITORIAL   COURTS  §§  5~6 

§  5.  Appeals  and  writs  of  error  from  Supreme  Courts  of  Porto 
Rico  and  Hawaii — Time. 

"Sec.  246.  Writs  of  error  and  appeals  from  the  final  judgments  and  decrees 
of  the  Supreme  Court  of  the  Territory  of  Hawaii  and  of  the  Supreme  Court  of 
Porto  Rico  may  be  taken  and  prosecuted  to  the  Supreme  Court  of  the  United 
States  within  the  same  time,  in  the  same  manner,  and  under  the  same  regulations, 
and  in  the  same  classes  of  cases,  in  which  writs  of  error  and  appeals  from  the 
final  judgments  and  decrees  of  the  highest  court  of  a  State  in  which  a  decision  in 
the  suit  could  be  had,  may  be  taken  and  prosecuted  to  the  Supreme  Court  of  the 
United  States  under  the  provisions  of  section  two  hundred  and  thirty-seven; 
and  in  all  other  cases,  civil  or  criminal,  in  the  Supreme  Court  of  the  Territory  of 
Hawaii  or  the  Supreme  Court  of  Porto  Rico,  it  shall  be  competent  for  the 
Supreme  Court  of  the  United  States  to  require  by  certiorari,  upon  the 
petition  of  any  party  thereto,  that  the  case  be  certified  to  it,  after  final  judgment 
or  decree,  for  review  or  determination,  with  the  same  power  and  authority  as  if 
taken  to  that  court  by  appeal  or  writ  of  error;  but  certiorari  shall  not  be  allowed 
in  any  such  case  unless  the  petition  therefor  is  presented  to  the  Supreme  Court  of 
the  United  States  within  six  months  from  the  date  of  such  judgment  or  decree. " 
Writs  of  error  and  appeals  from  the  final  judgments  and  decrees  of  the  supreme 
courts  of  the  Territory  of  Hawaii  and  of  Porto  Rico,  wherein  the  amount  in- 
volved, exclusive  of  costs,  to  be  ascertained  by  the  oath  of  either  party  or  of  other 
competent  witnesses,  exceeds  the  value  of  #5000  may  be  taken  and  prosecuted  in 
the  circuit  courts  of  appeals. *     (38  Stat.  L.  804.) 

§  6.  Time  for  appeal  and  error — Porto  Rico. 

On  October  19,  1916,  the  Circuit  Court  of  Appeals  for  the 
First  Circuit,  adopted  the  following  rule  relating  to  appeals  and 
writs  of  error  from  the  District  Court  of  the  United  States  for  the 
District  of  Porto  Rico  and  from  the  Supreme  Court  of  the  District 
of  Porto  Rico : 

"  Appeals  and  writs  of  error  from  and  to  the  District  Court  of  the  United 
States  for  the  District  of  Porto  Rico,  and  from  the  Supreme  Court  of  the 
District  of  Porto  Rico  whenever  by  law  they  can  be  taken,  shall  be  taken 
within  six  calendar  months  from  the  time  when  the  right  to  such  an  appeal 
or  writ  of  error  accrues,  and  not  afterwards,  by  filing  a  claim  for  the  appeal 
in  the  registry  of  the  court  appealed  from,  or  by  suing  out  a  writ  from  the 
Court  of  Appeals,  or  from  the  Court  or  judge  in  Porto  Rico,  as  the  case 
may  be." 


1  See  by  analogy  Chap.  IX.  of  this  book,  dealing  with  writs  of  error  to  State 
Courts. 

(185) 


Ch.  XII)         APPEAL  FROM   VARIOUS  TERRITORIAL   COURTS  §§  7~8 

§  7.  From  the  Supreme  Court  of  Philippine  Islands.    Procedure 
limited  to  certiorari. 

The  jurisdiction  of  the  United  States  Supreme  Court  to  review 
the  judgments  of  the  Supreme  Court  of  the  Philippine  Islands 
has  been  restricted  by  the  recent  Act  of  Congress  to  review 
by  certiorari  only  in  force  September  6,  1916,  which  is  as 
follows : 

"No  judgment  or  decree  rendered  or  passed  by  the  Supreme  Court  of  the 
Philippine  Islands  more  than  sixty  days  after  the  approval  of  this  Act  shall  be 
reviewed  by  the  Supreme  Court  upon  writ  of  error  or  appeal;  but  it  shall  be 
competent  for  the  Supreme  Court,  by  certiorari  or  otherwise,  to  require  that 
there  be  certified  to  it  for  review  and  determination,  with  the  same  power  and 
authority  and  with  like  effect  as  if  brought  up  by  writ  of  error  or  appeal,  any 
cause  wherein,  after  such  sixty  days,  the  Supreme  Court  of  the  Philippine  Islands 
may  render  or  pass  a  judgment  or  decree  which  would  be  subject  to  review  under 
existing  laws."1 

§  8.  Special  provisions  as  to  courts  of  Alaska. 

"  In  all  cases  other  than  those  in  which  a  writ  of  error  or  appeal  will  lie  direct 
to  the  Supreme  Court  of  the  United  States  as  provided  in  section  two  hundred 
and  forty-seven,  in  which  the  amount  involved  or  the  value  of  the  subject- 
matter  in  controversy  shall  exceed  five  hundred  dollars,  and  in  all  criminal  cases, 
writs  of  error  and  appeals  shall  lie  from  the  district  court  for  Alaska  or  from  any 
division  thereof,  to  the  circuit  court  of  appeals  for  the  ninth  circuit,  and  the 
judgments,  orders,  and  decrees  of  said  court  shall  be  final  in  all  such  cases.  But 
whenever  such  circuit  court  of  appeals  may  desire  the  instruction  of  the  Supreme 
Court  of  the  United  States  upon  any  question  or  proposition  of  law  which  shall 
have  arisen  in  any  such  case,  the  court  may  certify  such  question  or  proposition 
to  the  Supreme  Court,  and  thereupon  the  Supreme  Court  shall  give  its  instruc- 
tion upon  the  question  or  proposition  certified  to  it,  and  its  instructions  shall  be 
binding  upon  the  circuit  court  of  appeals. "     §  13 1  of  the  Federal  Judicial  Code. 

"All  appeals  and  writs  of  error,  and  other  cases,  coming  from  the  district 
court  for  the  district  of  Alaska  to  the  circuit  court  of  appeals  for  the  ninth  circuit, 
shall  be  entered  upon  the  docket  and  heard  at  San  Francisco,  California,  or  at 
Portland,  Oregon,  or  at  Seattle,  Washington,  as  the  trial  court  before  whom  the 
case  was  tried  below  shall  fix  and  determine.    Provided,  That  at  any  time  before 


*  Act  Sept.  6, 1916,  Chap.  448,  §  5;  39  Statutes  at  Large,  §  1225b.  Consult  "Cer- 
tiorari," Chap.  VIII. 

(186) 


Ch.  XII)         APPEAL  FROM  VARIOUS  TERRITORIAL  COURTS  §  9 

the  hearing  of  any  appeal,  writ  of  error,  or  other  case,  the  parties  thereto, 
through  their  respective  attorneys,  may  stipulate  at  which  of  the  above  named 
places  the  same  shall  be  heard,  in  which  case  the  case  shall  be  remitted  to  and 
entered  upon  the  docket  at  the  place  so  stipulated  and  shall  be  heard  there. " 
§  135  of  the  Federal  Judicial  Code. 

By  a  recent  decision  of  the  Supreme  Court  of  the  United  States, 
capital  cases  must  be  taken  to  the  U.  S.  Circuit  Court  of  Appeals 
for  the  9th  Circuit. ■ 

§  9.  Appeals  and  writs  of  error  from  District  Court  of  Alaska 
direct  to  the  Supreme  Court. 

"Appeals  and  writs  of  error  may  be  taken  and  prosecuted  from  final  judgments 
and  decrees  of  the  District  Court  for  the  District  of  Alaska  or  for  any  division 
thereof,  direct  to  the  Supreme  Court  of  the  United  States  in  the  following  cases: 
In  prize  cases;  and  in  all  cases  which  involve  a  construction  or  application  of  the 
Constitution  of  the  United  States,  or  in  which  the  constitutionality  of  any  law 
of  the  United  States  or  the  validity  or  construction  of  any  treaty  made  under  its 
authority  is  drawn  in  question,  or  in  which  the  constitution  or  law  of  the  state  is 
claimed  to  be  in  contravention  of  the  Constitution  of  the  United  States.  Such 
writs  of  error  and  appeal  shall  be  taken  within  the  same  time,  in  the  same  manner, 
and  under  the  same  regulations  as  writs  of  error  and  appeals  are  taken  from  the 
District  Court  to  the  Supreme  Court.  "2  §  247  Federal  Judicial  Code  (36  Stat. 
L.  1158.) 

1  Itow  v.  United  States,  233  U.  S.  581,  34  Sup.  Ct.  Rep.  699,  58  L.  ed.  1102. 
9  See  by  analogy  Chap.  V.  of  this  book,  "Appeal  and  Error  Direct  to  Supreme 
Court." 


(1S7; 


Ch.  XIII) 


APPEALS  IN  HABEAS  CORPUS  CASES 


§1 


CHAPTER  XIII 


Appeals  in  Habeas  Corpus  Cases 


Sec. 

1.  Appeals  statutory  and  of  right. 

2.  When  writ  will  issue — No  hard  and 

fast  rule. 

3.  Appellate  tribunal  prescribes  mode 

of  appeal — The  Statute. 

4.  Custody  of  prisoner  pending  appeal 

— Court  rules. 

5.  Acts  of  State  courts  pending  appeal 

to  Federal  Court  void. 

6.  Certificate  from  Federal  judge  pre- 

requisite to  appeal  to  Supreme 
Court  of  U.  S.  in  causes  under 
State  process. 

7.  Special  uses  of  writ. 

8.  Constitutionality  of  Act  cannot  be 

tested  by  habeas  corpus  in 
criminal    cases. 

9.  Sufficiency  of  indictment  cannot  be 

tested  by  habeas  corpus. 
10.  Cannot  replace  writ  of  error. 


Sec. 

11.  Administration  of  State  law. 

12.  Errors   of   law   not   reviewable   by 

habeas  corpus. 

13.  Contempt      before      Congressional 

Committee. 

14.  Removal  proceedings. 

15.  Deportation  cases. 

16.  Inquiry  limited  to  question  whether 

petitioner  had  fair  hearing. 

17.  Right   of   deportation — How  to   be 

exercised. 

18.  Release  conditional. 

19.  When     challenge     of     jurisdiction 

permitted. 

20.  Summary  of  the  doctrine. 

21.  Extradition  cases. 

22.  Former  jeopardy. 

23.  Under  process  of  House  of  Repre- 

sentatives. 


§  i.  Appeals  statutory  and  of  right. 

An  appeal  in  habeas  corpus  cases  is  purely  statutory.  ■ 
Originally  an  appeal  could  be  taken  in  all  habeas  corpus  cases 
to  the  Supreme  Court  of  the  United  States,  but,  in  the  distribu- 
tion of  jurisdiction  between  the  United  States  Circuit  Court  of 
Appeals  and  the  Supreme  Court  of  the  United  States,  all  appeals 
from  the  judgments  of  the  district  courts  of  the  United  States 
go  to  the  Circuit  Court  of  Appeals  of  the  United  States,  except 
such  cases  where  an  appeal  or  writ  of  error  may  be  taken  directly 

Sec.  764  Revised  Statutes  of  U.  S. 
(188) 


Ch.  XIII)  APPEALS  IN  HABEAS  CORPUS  CASES  §§  2~4 

to  the  Supreme  Court  of  the  United  States  under  Section  238  of 
the  Judicial  Code.1 

An  appeal  in  a  habeas  corpus  case  is  a  matter  of  right. 2 

And  the  only  mode  of  review  is  by  appeal. 3 
§  2.  When  writ  will  issue  —No  hard  and  fast  rule. 

When  a  person  under  arrest  applies  for  discharge  on  a  writ  of 
habeas  corpus,  the  issue  presented  is  whether  he  is  unlawfully 
restrained  of  his  liberty.  But  there  is  no  unlawful  lestraint  where 
he  is  held  under  a  valid  order  of  commitment,  so  that  in  strict 
logic  the  inquiry  might  extend  to  the  legal  sufficiency  of  the  order. 
In  view,  however,  of  the  nature  of  the  writ  and  the  character  of 
the  detention  under  a  warrant,  no  hard  and  fast  rule  has  been 
announced  as  to  how  far  the  court  will  go  in  passing  upon  ques- 
tions raised  in  habeas  corpus  proceedings. 4 
§  3.  Appellate  tribunal  prescribes  mode  of  appeal— The  statute. 

Section  765  of  the  Revised  Statutes  of  the  U.  S.  provides: 

"The  appeals  allowed  by  the  two  preceding  sections  shall  be  taken  on  such 
terms,  and  under  such  regulations  and  orders,  as  well  for  the  custody  and  appear- 
ance of  the  person  alleged  to  be  in  prison  or  confined  or  restrained  of  his  liberty 
as  for  sending  up  to  the  appellate  tribunal  a  transcript  of  the  petition,  writ  of 
habeas  corpus,  return  thereto,  and  other  proceedings,  as  may  be  prescribed  by 
the  Supreme  Court,  or,  in  default  thereof,  by  the  court  or  judge  hearing  the 
cause." 

§  4.  Custody  of  prisoner  pending  appeal — Court  rules.] 

Rule  34  of  the  Supreme  Court  of  the  U.  S.  provides : 

"  1.  Pending  an  appeal  from  the  final  decision  of  any  court  or  judge  declining 
to  grant  the  writ  of  habeas  corpus,  the  custody  of  the  prisoner  shall  not  be 
disturbed. 


1  Ex  parte  Jim  Hong,  211  Fed.  73;  King  v.  McClean  Asylum,  64  Fed.  325;  David 
Burke  (C.  C.  A.),  97  Fed.  501;  Webb  v.  York,  74  Fed.  753. 

2  In  re  Jugiro,  140  U.  S.  291,  35  L.  Ed.  510,  11  Sup.  Ct.  Rep.  770;  Ex  parte 
McCardle,  6  Wall.  318,  73  U.  S.  318, 18  L.  Ed.  816;  Ex  parte  Jim  Hong,  211  Fed.  73. 

3  Walters  v.  McKinnis,  221  Fed.  746;  Frank  v.  Mangum,  237  U.  S.  309,  35  Sup. 
Ct.  Rep.  582,  59  L.  Ed.  969;  In  re  Neagle,  135  U.  S.  42,  34  L.  Ed.  64,  10  Sup.  Ct. 
Rep.  660. 

4  Henry  v.  Henkel,  235  U.  S.  219,  59  L.  Ed.  203,  35  Sup.  Ct.  Rep.  54. 

(189) 


Ch.  XIII)  APPEALS  IN  HABEAS  CORPUS  CASES  §§  5~7 

"2.  Pending  an  appeal  from  the  final  decision  of  any  court  or  judge  discharg- 
ing the  writ  after  it  has  been  issued,  the  prisoner  shall  be  remanded  to  the 
custody  from  which  he  was  taken  by  the  writ,  or  shall,  for  good  cause  shown,  be 
detained  in  custody  of  the  court  or  judge,  or  be  enlarged  upon  recognizance 
as  hereinafter  provided. 

"3.  Pending  an  appeal  from  the  final  decision  of  any  court  or  judge  discharg- 
ing the  prisoner,  he  shall  be  enlarged  upon  recognizance,  with  surety,  for  appear- 
ance to  answer  the  judgment  of  the  appellate  court,  except  where,  for  special 
reasons,  sureties  ought  not  to  be  required. " 

The  same  rule  is  in  force  in  all  the  Circuit  Courts  of  Appeal. 
§  5.  Acts  of  State  courts  pending  appeal  to  Federal  Court  void. 

Section  7G6  of  the  Revised  Statutes  provides : 

"Pending  the  proceedings  or  appeal  in  the  cases  mentioned  in  the  three  pre- 
ceding sections,  and  until  final  judgment  therein,  and  after  final  judgment  of 
discharge,  any  proceeding  against  the  person  so  imprisoned  or  confined  or  re- 
strained of  his  liberty,  in  any  State  court,  or  by  or  under  the  authority  of  any 
State,  for  any  matter  so  heard  and  determined,  or  in  process  of  being  heard  and 
determined,  under  such  writ  of  habeas  corpus,  shall  be  deemed  null  and  void. 
Provided,  That  no  such  appeal  shall  be  had  or  allowed  after  six  months  from  the 
date  of  the  judgment  or  order  complained  of." 

§  6.  Certificate  from  Federal  judge  prerequisite  to  appeal  to 
Supreme  Court  of  U.  S.  in  causes  under  State  process. 
By  the  Act  of  March  10,  1908  (Ch.  76,  35  Stat.  L.  40),  it  is 
now  the  law : 

"That  from  a  final  decision  by  a  court  of  the  United  States  in  a  proceeding 
in  habeas  corpus  where  the  detention  complained  of  is  by  virtue  of  process  issued 
out  of  a  State  court  no  appeal  to  the  Supreme  Court  shall  be  allowed  unless  the 
United  States  court  by  which  the  final  decision  was  rendered  or  a  justice  of  the 
Supreme  Court  shall  be  of  opinion  that  there  exists  probable  cause  for  an  appeal, 
in  which  event,  on  allowing  the  same,  the  said  court  or  justice  shall  certify  that 
there  is  probable  cause  for  such  allowance." 

§  7.  Special  uses  of  writ. 

(a)  Habeas  corpus  and  certiorari  are  sometimes  issued  in  aid 

of  appellate  jurisdiction. * 

1  Frank  v.  Mangum,  237  U.  S.  309,  35  Sup.  Ct.  Rep.  582,  59  L.  Ed.  969; 
In  re  Chetwood,  165  U.  S.  443,  41  L.  Ed.  782,  17  Sup.  Ct.  Rep.  385;  In  re  Sachs, 
190  U.  S.l,  47  L.  Ed.  933,  23  Sup.  Ct.  Rep.  718. 

(190) 


Ch.  XIII)  APPEALS  IN  HABEAS  CORPUS  CASES  §  8-11 

(b)  The  identity  of  the  prisoner  in  an  extradition  proceeding 
may  be  inquired  into.1 

(c)  In  emigration  proceedings  the  facts  may  be  reviewed. 2 

§  8.  Constitutionality  of  Act  cannot  be  tested  by  habeas  corpus  in 
criminal  cases. 

The  earlier  cases  hold  that  the  constitutionality  of  a  statute 
may  be  tested  by  habeas  corpus.3 

But,  in  the  case  of  Johnson  v.  U.  S.,  the  Supreme  Court  flatly 
laid  down  the  rule  that  the  writ  of  habeas  corpus  will  not  issue  to 
test  the  constitutionality  of  a  law  in  a  criminal  case  before  trial, 
and  that  the  only  way  to  bring  the  Act  before  the  Supreme  Court 
is  by  writ  of  error.4 

And  the  same  rule  is  applicable  to  a  removal  case  to  another 
district  for  trial. s 

§  9.  Sufficiency   of   indictment   cannot   be   tested   by   habeas 
corpus. 

The  sufficiency  of  an  indictment  cannot  be  raised  by  habeas 
corpus. 6 
§  10.  Cannot  replace  writ  of  error. 

The  writ  cannot  perform  the  office  of  writ  of  error.7 
§  11.  Administration  of  State  law. 

Ordinarily  the  Supreme  Court  of  the  United  States  will  not 
issue  a  writ  of  habeas  corpus  until  all  remedies  have  been 
exhausted  in  vain  in  the  highest  courts  of  the  State. 8 

Under  the  terms  of  Section  753,  Revised  Statutes  of  the  United 
States,  in  order  to  entitle  a  person  to  the  writ  of  habeas  corpus, 

1  Ex  parte  Chung  Kin  Tow,  218  Fed.  185. 
aWhitfield  v.  Hanges  (C.  C.  A.),  222  Fed.  745. 

3  Cooley  v.  Morgan,  221  Fed.  252;  In  re  Siebold,  100  U.  S.  371,  25  L.  Ed.  717; 
Ex  parte  Nielsen,  131  U.  S.  17G,  33  L.  Ed.  118,  9  Sup.  Ct.  Rep.  672. 

4  Johnson  v.  Hoy,  227  U.  S.  245,  57  L.  Ed.  497,  33  Sup.  Ct.  Rep.  240. 
s  Henry  v.  Henkel,  235  U.  S.  219,  59  L.  Ed.  203,  35  Sup.  Ct.  Rep.  54. 
6  Drew  v.  Thaw,  235  U.  S.  432,  59  L.  Ed.  302,  35  Sup.  Ct.  Rep.  137. 

1  McMicking  v.  Shields,  238  U.  S.  99,  59  L.  Ed.  1220,  35  Sup.  Ct.  Rep.  665. 
8  Frank  v.   Mangum,  237  U.   S.  309,  35  Sup.  Ct.  Rep.  582,  59  L.  Ed.  969; 
United  States  v.  Sing  Tuck,  194  U.  S.  161, 48  L.  Ed.  917,  24  Sup.  Ct.  Rep.  621. 

(191) 


Ch.  XIII)  APPEALS  IN  HABEAS  CORPUS  CASES  §  12 

it  must  appear  that  he  is  held  in  custody  in  violation  of  the 

Constitution  of  the  United  States. z 

§  12.  Errors  of  law  not  reviewable  by  habeas  corpus. 

Mere  errors  in  point  of  law,  however  serious,  committed  by  a 
criminal  court  in  the  exercise  of  its  jurisdiction  over  a  case  properly 
subject  to  its  cognizance,  cannot  be  reviewed  by  habeas  corpus. 
That  writ  cannot  be  employed  as  a  substitute  for  the  writ  of  error. 2 

In  a  habeas  corpus  proceeding,  under  a  process  of  a  state  court, 
the  inquiry  is  directed  to  the  question  whether  the  prisoner  is  de- 
prived of  his  liberty  without  due  process  of  law  in  violation  of  the 
Fourteenth  Amendment  to  the  Constitution  of  the  United  States. 3 

It  is,  indeed,  settled  by  repeated  decisions  of  the  United  States 
Supreme  Court  that  where  it  is  made  to  appear  to  a  court  of  the 
United  States  that  an  applicant  for  habeas  corpus  is  in  the 
custody  of  a  state  officer  in  the  ordinary  course  of  a  criminal 
prosecution,  under  a  law  of  the  state  not  in  itself  repugnant  to  the 
Federal  Constitution,  the  writ,  in  the  absence  of  very  special 
circumstances,  ought  not  to  be  issued  until  the  Federal  questions 
arising  upon  the  record  have  been  brought  before  the  Supreme 
Court  of  the  United  States  upon  writ  of  error. 4 

1  Leo  M.  Frank  v.  Mangum,  237  U.  S.  309,  35  Sup.  Ct.  Rep.  582,  59  L.  Ed.  969; 
Rogers  v.  Peck,  199  U.  S.  425,  50  L.  Ed.  256,  26  Sup.  Ct.  Rep.  87. 

a  Frank  v.  Mangum,  237  U.  S.  309, 35  Sup.  Ct.  Rep.  582, 59  L.  Ed.  969 ;  Markuson 
v.  Boucher,  175  U.  S.  184,  44  L.  Ed.  124,  20  Sup.  Ct.  Rep.  76;  Tinsley  v.  Anderson, 
171  U.  S.  101,  105,  43  L.  Ed.  91,  96,  18  Sup.  Ct.  Rep.  805;  Baker  v.  Grice,  169  U.  S. 
284,  290,  42  L.  Ed.  748,  750,  18  Sup.  Ct.  Rep.  323;  Re  Frederich,  149  U.  S.  70,  75,  37 
L.  Ed.  653,  656,  13  Sup.  Ct.  Rep.  793;  Ex  parte  Royall,  117  U.  S.  241,  250,  29  L.  Ed. 
808,  871,  6  Sup.  Ct.  Rep.  734;  Ex  parte  Siebold,  100  U.  S.  371, 375, 25  L.  Ed.  717, 718; 
Ex  parte  Parks,  93  U.  S.  18,  21,  23  L.  Ed.  787,  788. 

3  Frank  v.  Mangum,  237  U.  S.  309,  35  Sup.  Ct.  Rep.  582,  59  L.  Ed.  969. 

i  Urquhart  v.  Brown,  205  U.  S.  179,  51  L.  Ed.  760, 27  Sup.  Ct.  Rep.  459 ;  Markuson 
v.  Boucher,  175  U.  S.  184,  44  L.  Ed.  124,  20  Sup.  Ct.  Rep.  76;  Tinsley  v.  Anderson, 
171  U.  S.  101,  105,  43  L.  Ed.  91,  96,  18  Sup.  Ct.  Rep.  805;  Baker  v.  Grice,  109  U.  S. 
284,  291,  42  L.  Ed.  748,  750,  18  Sup.  Ct.  Rep.  323;  Whitten  v.  Tomlinson,  160  U.  S. 
231,  242,  40  L.  Ed.  406,  412,  16  Sup.  Ct.  Rep.  297;  Re  Frederich,  149  U.  S.  70,  77, 
37  L.  Ed.  653,  657,  13  Sup.  Ct.  Rep.  793;  Ex  parte  Royall,  117  U.  S.  241,  251,  29  L. 
Ed.  86S,  871,  6  Sup.  Ct.  Rep.  734;  and  see  Henry  v.  Henkel,  235  U.  S.  219,  228,  ante, 
59  L.  Ed.  203,  35  Sup.  Ct.  Rep.  54. 

(192) 


Ch.  XIII)  APPEALS  IN  HABEAS  CORPUS  CASES  §§  13-16 

§  13.  Contempt  before  Congressional  Committee. 

Habeas  corpus  will  not  lie  to  release  from  imprisonment,  upon 
an  indictment  charging  the  defendant  with  refusing  contrary  to 
§§  101-104  (U.  S.  Compiled  Statutes  1901)  to  testify  and  give 
information  to  a  Congressional  Committee.  "Whether  the 
Congressional  Committee  acted  within  jurisdiction  is  a  mat- 
ter to  be  argued  before  the  court  where  the  indictment  is 
pending. z 
§  14.  Removal  proceedings. 

The  indictment  in  a  removal  proceeding  constitutes  prima 
facie  evidence  of  probable  cause,  but  is  not  conclusive.  The 
defendant  in  a  habeas  corpus  proceeding  may  show  by  evidence 
that  no  indictable  offense  was  committed  in  the  district  in  which 
the  indictment  was  returned. 2 
§  15.  Deportation  cases. 

Habeas  corpus  may  be  resorted  to  to  review  an  order  for  the 
deportation.3 

§16.  Inquiry  limited  to  question  whether  petitioner  had  fair 
hearing. 

The  courts  are  not  authorized  to  interfere  with  an  order  of 
deportation  made  after  a  fair  hearing,  even  though  the  evidence 
be  slight  upon  which  the  order  is  based,  if  there  be  any  evidence 
whatever  to  support  it.    But  it  has  been  uniformly  held  that  where 

*  Henry  v.  Henkel,  U.  S.  Sup.  Ct.  235  IT.  S.  219,  59  L.  Ed.  203,  35  Sup.  Ct.  Rep. 
54. 

*  Beavers  v.  Henkel,  194  U.  S.  73,  48  L.  Ed.  882,  24  Sup.  Ct.  Rep.  605;  Benson 
v.  Henkel,  198  U.  S.  1,  49  L.  Ed.  919,  25  Sup.  Ct.  Rep.  569;  Hyde  v.  Shine,  199  U.  S. 
62,  50  L.  Ed.  90,  25  Sup.  Ct.  Rep.  760;  Greene  v.  Henkel,  183  U.  S.  261,  46  L.  Ed. 
189,  22  Sup.  Ct.  Rep.  223;  Tinsley  v.  Treat,  205  U.  S.  20,  51  L.  Ed.  689,  27  Sup.  Ct. 
Rep.  430. 

3  Hanges  v.  Whitfield,  209  Fed.  675;  Ex  parte  Gytl,  210  Fed.  918;  Ex  parte  Lam 
Pui,  217  Fed.  465;  Chin  Low  v.  United  States,  208  U.  S.  8, 28  Sup.  Ct.  201,  52  L.  Ed. 
369;  Wong  Wing  v.  United  States,  163  U.  S.  228, 237,  238,  239,  16  Sup.  Ct.  Rep.  977, 
41  L.  Ed.  140;  United  States  v.  Sibray  (C.  C),  178  Fed.  144;  United  States  v.  Williams 
(D.  C),  185  Fed.  598;  Roux  v.  Commissioner  of  Immigration,  203  Fed.  413,  121 
C.  C.  A.  523;  United  States  v.  Williams  (D.  C),  193  Fed.  228;  Hanges  v.  Whitfield, 
209  Fed.  676. 

13  (193) 


Ch.  XIII)  APPEALS   IN  HABEAS  CORPUS  CASES  §§  17-18 

the  petitioner  has  not  been  accorded  a  fair  hearing  within  the 
meaning  of  the  law,  it  is  the  duty  of  the  court  to  intervene. x 

The  court  will  not  in  proceedings  of  this  character  consider 
the  testimony  or  the  weight  thereof,  if  properly  and  fairly  taken, 
to  determine  whether  or  not  it  is  sufficient  to  warrant  the  deporta- 
tion of  an  alien.  That  would  be  for  the  proper  immigration  offi- 
cials to  determine.  But  the  court  may,  and  it  is  its  duty  to 
consider  the  manner  of  procuring  the  testimony,  its  competency, 
and  legal  admissibility  against  the  petitioners,  and  determine 
whether  or  not  they  have  had  a  fair  and  impartial  hearing  or  trial. 2 
§  17.  Right  of  deportation — How  to  be  exercised. 

Long,  and  frequently  sad,  experience  teaches  that  when  officers, 
intrusted  with  the  administration  of  laws  affecting  the  liberty  of 
men,  are  permitted  to  set  aside  and  disregard  those  safeguards 
which  the  wisdom  of  the  ages  have  set  up  for  the  protection  of 
liberty,  in  respect  to  those  of  one  race  or  color,  one  creed  or  clime, 
it  is  but  a  short,  and  easily  taken,  step  to  do  so  when  the  liberty 
of  the  citizen  is  involved.  If  necessity,  or  the  public  safety, 
demands  that  swift,  unusual,  and  summary  methods  of  procedure 
be  permitted,  the  power  should  be  conferred  by  the  people's 
representatives  in  Congress  in  clear  and  unmistakable  terms 
and  by  rules  of  departments  conferring  such  power  upon 
inspectors.3 
§  18.  Release  conditional. 

If  a  writ  of  habeas  corpus  is  allowed  on  the  ground  that  the 
immigration  officials  did  not  afford  the  alien  a  hearing,  the  order 
of  release  should  be  made  conditional  and  to  be  effective  only 
in  case  those  officers  should  fail  to  give  the  alien  the  fair  hearing 

1  Ex  parte  Sata,  215  Fed.  17G;  In  re  Jem  Yuem,  188  Fed.  351 ;  Japanese  Immigra- 
tion Case  v.  United  States,  189  U.  S.  8G,  47  L.  Ed.  721,  23  Sup.  Ct.  Rep.  611 ;  United 
States  ex  rel.  N.  G.  Sam  v.  Redfcrn,  210  Fed.  548. 

2 Ex  parte  Lam  Pui,  217  Fed.  463;  Hanges  v.  Whitfield  (D.  C),  209  Fed.  675; 
Chin  Low  v.  United  States,  208  U.  S.  8,  28  Sup.  Ct.  Rep.  201,  52  L.  Ed.  369; 
United  States  v.  Quan  Wah  (D.  C),  214  Fed.  462;  United  States  v.  Lou  Chu  (D.  C), 
214  Fed.  463. 

s  Ex  parte  Lam  Pui,  217  Fed.  465;  Hanges  v.  Whitfield,  209  Fed.  675. 

(194) 


Ch.  XIII)  APPEALS  IN  HABEAS  CORPUS  CASES  §§  19-20 

on  lawful  evidence  required  by  the  Immigration  Act  within  a 

reasonable  time.1 

§  19.  When  challenge  of  jurisdiction  permitted. 

In  deportation  cases  it  is  well  settled  that,  when  the  petitioner 
challenges  the  jurisdiction  of  the  court  or  the  tribunal  by  whose 
mandate  he  is  deprived  of  his  liberty  and  is  held  in  custody,  he 
may  do  so  upon  the  return  to  the  writ  of  habeas  corpus.  If  there 
be  no  jurisdiction,  no  power  vested  in  the  tribunal,  or  officer  to 
deprive  him  of  his  liberty,  the  mandate  upon  which  the  ministerial 
officer  acts  is  utterly  null  and  void,  and  petitioner  is  unlawfully 
restrained  of  his  liberty.2 
§  20.  Summary  of  the  doctrine. 

The  doctrine  is  aptly  summed  up  in  Horner  v.  United  States, 
supra,  where  the  petitioner  at  the  time  of  presenting  his  petition 
had  been  committed  by  a  United  States  commissioner  to  await 
the  action  of  the  grand  jury  on  a  charge  of  illegally  conducting  a 
lottery;  his  contention  being  that  the  charge  involved  no  offense 
under  the  statute.  The  Supreme  Court  in  affirming  the  judgment 
of  the  court  below  dismissing  the  writ,  said,  in  response  to  the 
contention : 

"But  we  are  of  opinion  that  that  question  ought  to  be  reviewed  by  us  on 
this  appeal.  The  point  raised  is  that  the  Austrian  bond  scheme  was  not  a 
lottery.  That  is  a  question  properly  triable  by  the  court  in  which  an  indict- 
ment may  be  found  against  Horner.  He  is  now  held  to  await  the  action  of  a 
grand  jury.  His  case  is  in  the  regular  course  of  criminal  adjudication.  It  is 
not  proper  for  this  court,  on  this  appeal,  nor  was  it  proper  for  the  Circuit 
Court,  on  the  writ  of  habeas  corpus,  to  determine  the  question  as  to  whether 
the  scheme  was  a  lottery.  In  re  Cortes,  136  U.  S.  330  (10  Sup.  Ct.  1031,  34 
L.  Ed.  446);  Stevens  v.  Fuller,  136  U.  S.  468  (10  Sup.  Ct.  911,  34  L.  Ed.  461). 
The  commissioner  had  jurisdiction  of  the  subject-matter  involved  and  of  the 
person  of  Horner,  and  the  grand  jury  would  have  like  jurisdiction.  .  .  . 
Whether  the  scheme  was  a  lottery  is  a  question  to  be  determined  in  the  adminis- 
tration of  the  jurisdiction.  It  is  not  for  this  court  to  determine  that  question 
in  advance.  The  principle  is  the  same  as  that  involved  in  Re  Fassett,  142  U.  S. 
479,  483,  484  (12  Sup.  Ct.  295,  35  L.  Ed.  1087).      The  case  presents  for  the 


1  United  States  v.  Petkos,  214  Fed.  978  (C.  C.  A.  1st  Cir.). 

8  United  States  v.  Tsuji,  199  Fed.  750;  Ex  parte  Lam  Pui,  217  Fed.  462. 

(195) 


Ch.  XIII)  APPEALS  IN   HABEAS  CORPUS  CASES  §§  21-23 

determination  of  the  court  in  which  the  indictment  may  be  found  the  question 
as  to  whether  the  scheme  was  a  lottery,  and  it  is  not  for  any  court  to  determine 
it  in  advance  on  habeas  corpus.  If  an  inferior  court  or  magistrate  of  the  United 
States  has  jurisdiction,  a  superior  court  of  the  United  States  will  not  interfere 
by  habeas  corpus."1 

§  21.  Extradition  cases. 

Consult  the  following  cases  in  regard  to  extradition  cases. a 
§  22.  Former  jeopardy. 

The  following  cases  may  be  examined  in  regard  to  pleas  of 
former  jeopardy.3 
§  23.  Under  process  cf  the  House  of  Representatives. 

The  courts  will  not  interfere  by  habeas  corpus  under  a  com- 
mitment based  upon  an  order  of  the  House  of  Representatives, 
when  that  body,  or  a  committee  appointed  by  it,  acts  in  a  judi- 
cial capacity.4 

1  U.  S.  ex  rel.  Fong  On  v.  McCarthy,  228  Fed.  398;  Horner  v.  United  States,  143 
U.  S.  570,  12  Sup.  Ct.  522,36  L.  Ed.  2GG;  In  re  Cortes,  136  U.  S.  330  (10  Sup.  Ct. 
1031,  34  L.  Ed.  446);  Stevens  v.  Fuller,  136  U.  S.  468  (10  Sup.  Ct.  911,  34  L.  Ed. 
461);  Re  Fassett,  142  U.  S.  479,  483, 484  (12  Sup.  Ct.  295,  35  L.  Ed.  1087). 

1  Botis  v.  Davics,  173  Fed.  996;  In  re  Petterson,  166  Fed.  536;  In  re  Swan,  150 
U.  S.  637,  137  L.  Ed.  1207,  14  Sup.  Ct.  Rep.  225;  Ex  parte  Page,  214  Fed.  256; 
Robert  v.  Reilly,  116  U.  S.  80,  29  L.  Ed.  544,  6  Sup.  Ct.  Rep.  291. 

s  Murphy  v.  Massachusetts,  177  U.  S.  155,  20  Sup.  Ct.  639,  44  L.  Ed.  711;  Ball 
v.  United  States,  163  U.  S.  662,  16  Sup.  Ct.  1192,  41  L.  Ed.  300;  Bryant  v.  United 
States,  214  Fed.  51  (C.  C.  A.  8  Circuit). 

"  United  States  ex  rel.  Marshall  v.  Gordon,  235  Fed.  422. 


(196) 


Ch.  XIV) 


CONTEMPT   OF   COURT — REVIEW 


§1 


CHAPTER  XIV 
Contempt  of  Court — Review 


Sec.  Sec- 

1.  The  power  of  the  Federal  courts,      22. 

§  268  Federal  Judicial  Code. 

2.  Construction  of  statute.  23. 

3.  No  change  of  venue  or  jury  trial. 

4.  "  Presence  of  the  court "  defined.  24. 

5.  Falsification  of  evidence.  25. 

6.  Misconduct  in  court. 

7.  Obstruction  of  due  administration  of      26. 

justice.  27. 

8.  Attack  on  plaintiff's  attorney. 

9.  Attempt  to  influence  juryman  on      28. 

street.  29. 

10.  Attorney  an  officer  of  court. 

11.  Assault  on  officer  on  duty.  30. 

12.  Language  intended  to  incite.  31. 

13.  Advice   of   counsel   no   defense   on 

failure  to  produce  papers.  32. 

14.  Interference       with       property     in 

custody  of  Bankruptcy  Court.         33. 

15.  Inability  to  comply  with  order. 

16.  Classes    of     contempt — Distinction      34. 

between    civil   and   criminal. 

17.  Review    of    civil    contempt,    when      35. 

allowed. 

18.  Diligence      in      prosecuting      civil 

contempt.  36. 

19.  Punishment  for  civil  contempt. 

20.  Procedure  in  criminal  contempt.  37. 

21.  Information  against  defendant. 


Contempt  out  of  court — Affidavits 

necessary. 
Criminal    contempt — Privileges     of 

defendant. 
Weight  of  evidence  not  reviewed. 
Perjury  in  civil  proceeding — When 

not  contempt. 
Relation  to  original  proceeding. 
Decree     should     indicate     hearsay 

evidence  rejected. 
Nature  of  pleading. 
Disobedience  of  order  of  Supreme 

Court. 
Cannot  be  purged  by  mere  answer. 
Contempt     conviction     no    bar    to 

criminal  prosecution. 
Criminal    Contempt — Mode  of   re- 
view. 
Criminal  contempt  by  a  stranger  to 

record. 
Petition  to  revise  in  civil  contempt 

in  bankruptcy. 
Mandamus  from  Supreme  Court  to 

Court    of    Appeals    to    entertain 

jurisdiction  in  contempt. 
Innocent    conduct    as    contempt — 

Review  of  State  Court. 
Imprisonment. 


§  i.  The  power  of  the  Federal  courts,  §  268  Federal  Judicial  Code. 

"  The  said  courts  shall  have  power  to  impose  and  administer  all  necessary  oaths, 
and  to  punish,  by  fine  or  imprisonment,  at  the  discretion  of  the  court,  contempts 
of  their  authority:  Provided,  That  such  power  to  punish  contempts  shall  not 
be  construed  to  extend  to  any  cases  except  the  misbehavior  of  any  person  in  their 
presence  or  so  near  thereto  as  to  obstruct  the  administration  of  justice,  the  mis- 

(197) 


Ch.  XIV)  CONTEMPT   OF   COURT — REVIEW  §§  2-4 

behavior  of  any  officers  of  said  courts  in  their  official  transactions,  and  the  dis- 
obedience or  resistance  by  any  such  officer,  or  by  any  party,  juror,  witness,  or 
other  person  to  any  lawful  writ,  process,  order,  rule,  decree,  or  command  of  the 
said  courts. 

§  208  of  the  Federal  Judicial  Code. 

§  2.  Construction  of  statute. 

The  courts  of  the  United  States  have  the  inherent  power  to 
punish  for  contempt. x 

A  United  States  commissioner  has  no  power  to  punish  for 
contempt  in  proceedings  held  before  him.  The  court  appointing 
him  has  such  power. 2 

The  process  of  contempt  is  a  severe  remedy  and  should  not 
be  resorted  to  where  there  is  fair  ground  of  doubt  as  to  the  wrong- 
fulness of  the  defendant's  conduct.3 
§  3.  No  change  of  venue  or  jury  trial. 

A  defendant  charged  with  contempt  is  not  entitled  to  a  change 
of  venue,4  or  trial  by  jury.5 
§  4.  "  Presence  of  the  court  "  defined. 

The  clause  "so  near  the  presence  of  the  court  as  to  obstruct 
the  administration  of  justice  "  does  not  have  reference  to  physical 
measurements  but  is  to  be  concluded  from  all  the  attending  cir- 
cumstances and  effect  intended.6 

1  Stuart  v.  Reynolds,  204  Fed.  714;  In  re  Maury,  205  Fed.  629;  United  States  v. 
Shipp,  203  U.  S.  572, 27  Sup.  Ct.  Rep.  167,  51  L.  Ed.  324;  Ex  parte  Robinson,  19  Wall. 
505,  22  L.  Ed.  205;  Ex  parte  Terry,  128  U.  S.  289,  32  L.  Ed.  405,  9  Sup.  Ct.  Rep.  77. 

2  U.  S.  v.  Shipp,  203  U.  S.  563,  27  Sup.  Ct.  Rep.  105,  51  L.  Ed.  319;  IT.  S.  v. 
Beavers,  125  Fed.  778. 

3  Stuart  v.  Reynolds,  204  Fed.  726;  California  Paving  Co.  v.  Molitor,  113  U.  S. 
609,  28  L.  Ed.  1106,  5  Sup.  Ct.  Rep.  618. 

«  Merchants,  etc.,  v.  Board  of  Trade,  201  Fed.  26. 

s  Eilenbecker  v.  District  Court  of  Plymouth  County,  134  U.  S.  31,  33  L.  Ed. 
801,  10  Sup.  Ct.  Rep.  424;  Interstate  Commerce  Commission  v.  Brimson,  154  U.  S. 
447,  38  L.  Ed.  1047,  14  Sup.  Ct.  Rep.  1125;  In  re  Debs,  158  U.  S.  564,  39  L.  Ed. 
1002,  15  Sup.  Ct.  Rep.  900;  Merchants'  S.  &  G.  Co.  v.  Board  of  Trade  of  Chicago, 
201  Fed.  25;  Ex  parte  Tillinghast,  4  Pet.  108,  7  L.  Ed.  798. 

6  U.  S.  v.  Toledo  Newspaper  Co.,  220  Fed.  458,  Sup.  Ct.  Affd.,  237  Fed.  986; 
Ex  parte  Terry,  128  U.  S.  290,  32  L.  Ed.  405,  9  Sup.  Ct.  Rep.  77 ;  In  re  Savin,  131 
U.  S.  207,  33  L.  Ed.  150,  9  Sup.  Ct.  Rep.  699. 

(198) 


Ch.  XIV)  CONTEMPT   OF  COURT — REVIEW  §§  5~7 

Federal  courts  may  punish  only  for  contempt  made  in  their 
presence  or  for  disobedience  of  its  lawful  process,  but  not  for 
making  newspaper  criticism.1 

The  court,  at  least  when  in  session,  is  present  in  every  part  of 
the  place  set  apart  for  its  own  use  and  for  the  use  of  its  officers, 
jurors,  and  witnesses,  and  misbehavior  anywhere  in  such  place  is 
misbehavior  in  the  presence  of  the  court. 2 
§  5.  Falsification  of  evidence. 

Where  a  deposition  was  taken  and  published  in  furtherance 
of  a  conspiracy  to  impose  upon  the  Federal  Court  in  another 
State,  it  is  held  that  said  acts  do  not  come  within  the  clause 
punishing  for  contempt  "any  misbehavior  so  near  or  in  the 
presence  of  the  court  as  to  obstruct  the  administration  of  justice" 
unless  said  deposition  was  actually  offered  or  used  as  evidence  in 
said  time.3 
§  6.  Misconduct  in  court. 

If  one  inside  a  court  room  disturbs  the  order  of  proceedings,  or 
is  guilty  of  personal  misconduct  in  the  presence  of  the  court, 
such  action  may  properly  be  regarded  as  a  contempt  of  court; 
yet  it  is  not  misconduct  in  which  an  individual  suitor  is  specially 
interested.  It  is  more  like  an  ordinary  crime  which  affects  the 
public  at  large,  and  the  criminal  nature  of  the  act  is  the  dominant 
feature.4 
§  7.  Obstruction  of  due  administration  of  justice. 

The  act  of  sending  threatening  letters  to  a  Federal  judge  at 
his  home  where  he  frequently  heard  matters  in  chambers  re- 
lating to  matters  pertaining  to  a  pending  cause  constitutes  a 
"contempt"  punishable  by  the  court.5 

1  Cuyler  v.  A.  &  N.  C.  R.  Co.,  131  Fed.  95;  U.  S.  v.  Toledo  Newspaper  Co.,  220 
Fed.  458. 

2  U.  S.  v.  Toledo  Newspaper  Co.,  220  Fed.  458;  Matter  of  Savin,  131  U.  S.  267, 
33  L.  Ed.  150,  9  Sup.  Ct.  Rep.  699. 

3  Doniphan  v.  Lehman,  179  Fed.  173,  U.  S.  v.  Toledo  Newspaper  Co.,  supra. 
iProudfit  L.  L.  Co.  v.  Kalamazoo  L.  L.  B.  Co.,  230  Fed.  120;   Bessette  v. 

Conkey,  194  U.  S.  329,  24  Sup.  Ct.  Rep.  667,  48  L.  Ed.  997. 
s  U.  S.  v.  Huff,  206  Fed.  705. 

(199) 


Ch.  XIV)  CONTEMPT   OF   COURT — REVIEW  §§  8~14 

§  8.  Attack  on  plaintiff's  attorney. 

Attacking  without  provocation   the   plaintiff's  attorney  on 
the  street  in  full  view  of  the  jury  room  constitutes  contempt  of 
court. x 
§  o.  Attempt  to  influence  juryman  on  street. 

An  attempt  to  influence  a  juryman  on  the  street  in  the  vicinity 
of  the  court  is  a  contempt  of  court. 2 
§  10.  Attorney  an  officer  of  court. 

An  attorney  is  a  recognized  officer  of  the  courts  of  the  United 
States  and  is  amenable  to  punishment  for  contempt  under  the 
section  of  the  statute  authorizing  such  courts  to  punish  for  con- 
tempt any  of  the  officers  of  said  courts  for  misbehavior  in  their 
official  capacity.3 
§  11.  Assault  on  officer  on  duty. 

It  is  a  contempt  of  court  to  assault  a  judicial  officer  in  the 
performance  of  his  duty  as  required  by  said  court.4 
§  12.  Language  intended  to  incite. 

Language  or  conduct  intended  to  incite  others  to  violation  of 
the  court's  orders  is  a  contempt  of  court. s 
§  13.  Advice  of  counsel  no  defense  on  failure  to  produce  papers. 

Where  a  defendant  insisted  that  he  refused  to  produce  certain 
papers,  in  response  to  an  order  to  do  so  on  a  subpoena  duces 
tecum,  on  the  advice  of  counsel,  it  is  not  a  defense  in  a  contempt 
proceeding  against  him  for  deliberately  disobeying  the  court 
order  requiring  him  to  comply  with  the  subpoena.6 
§  14.  Interference  with  property  in  custody  of  Bankruptcy  Court. 

When  property  is  in  the  custody  of  the  Bankruptcy  Court,  no 

1  U.  S.  v.  Barrett,  187  Fed.  378,  TJ.  S.  v.  Huff,  supra. 

2  U.  S.  v.  Carroll,  147  Fed.  947,  U.  S.  v.  Huff,  supra. 

3  In  re  Dialogue,  215  Fed.  462;  Ex  parte  Davis,  112  Fed.  139;  Leber  v.  U.  S.  170 
Fed.  881. 

4  Ex  parte  McLeod,  120  Fed.  130;  U.  S.  v.  Huff,  206  Fed.  700. 

s  U.  S.  v.  Colorado,  216  Fed.  654;  United  States  v.  Debs  (C.  C),  64  Fed.  724; 
In  re  Debs,  158  U.  S.  564;  United  States  v.  Haggerty  (C.  C),  116  Fed.  510;  United 
States  v.  Gehr  (C.  C),  116  Fed.  520. 

6  In  re  Munroe,  210  Fed.  326. 

(200) 


Ch.  XIV)  CONTEMPT  OF   COURT — REVIEW  §§  15-17 

other  court,  and  no  person  acting  under  any  process  from  any 
other  court,  can  without  the  permission  of  the  Bankruptcy  Court, 
interfere  with  it;  and  to  so  interfere  is  a  contempt  of  the  Bank- 
ruptcy Court. x 
§  15.  Inability  to  comply  with  order. 

Where  a  bankrupt  has  not  the  means  to  pay  over  money  in 
compliance  with  an  order,  he  cannot  be  punished  by  summary 
imprisonment,  though  he  may  have  committed  an  offense  under 
the  Bankruptcy  Act.2 

§  16.  Classes    of     contempt — Distinction    between     civil    and 
criminal. 

If  the  contempt  is  civil,  the  punishment  is  remedial,  and  for 
the  benefit  of  the  complainant.  The  contempt  is  criminal  if  the 
proceeding  is  to  vindicate  the  authority  of  the  court.3 

Proceedings  for  civil  contempt  are  between  the  original 
parties,  and  are  instituted  and  tried  as  a  part  of  the  main  suit; 
but,  on  the  other  hand,  proceedings  at  law  for  criminal  contempt 
are  between  the  public  and  the  defendant,  and  are  not  a  part  of 
the  original  case.4 
§  17.  Review  of  civil  contempt,  when  allowed. 

A  judgment  in  civil  contempt  arising  in  an  equity  suit  may 
be  reviewed  only  after  final  decree  of  the  principal  cases, s  but  an 

1  Moran  v.  Sturges,  154  U.  S.  256,  14  Sup.  Ct.  Rep.  1019,  38  L.  Ed.  981;  Free- 
man v.  Howe,  24  How.  450,  459,  16  L.  Ed.  749;  U.  S.  v.  Colorado,  216  Fed.  654;  In 
re  Litchfield,  13  Fed.  863;  Ex  parte  Davis,  112  Fed.  139;  Royal  Trust  Co.  v.  Wash- 
burn, etc.,  Ry.  Co.,  113  Fed.  531;  In  re  Debs,  158  U.  S.  564,  15  Sup.  Ct.  Rep.  900, 
39  L.  Ed.  1092;  In  re  Acker,  66  Fed.  290. 

2  In  re  McNaught,  225  Fed.  511 ;  In  re  Davison,  143  Fed.  Rep.  673;  In  re  Levy  & 
Co.,  15  Am.  Bankr.  Rep.  166, 142  Fed.  442;  Stuart  v.  Reynolds,  204  Fed.  718;  Boyd 
v.  Glucklich,  116  Fed.  Rep.  131. 

3  Gompers  v.  Buck  Stove  &  Range  Co.,  221  U.  S.  441,  31  Sup.  Ct.  Rep.  492,  55 
L.  Ed.  797;  Phillips,  etc.,  v.  Amalgamated  Ass'n,  208  Fed.  335. 

4  Puget  Sound  Traction  Light  &  Power  Co.  v.  Lawery,  202  Fed.  265;  Gompers  v. 
Buck  Stove  &  Range  Co.,  221  U.  S.  418,  31  Sup.  Ct.  Rep.  492,  55  L.  Ed.  797;  United 
States  v.  Huff,  206  Fed.  700. 

s  Worden  v.  Searls,  121  U.  S.  14,  7  Sup.  Ct.  Rep.  814,  30  L.  Ed.  853;  Merchants' 
S.  &  G.  Co.  v.  Board  of  Trade  of  Chicago,  201  Fed.  25. 

(201) 


Ch.  XIV)  CONTEMPT   OF   COURT — REVIEW  §§  1S-21 

order  or  decree  of  the  District  Court  inflicting  a  fine  or  imprison- 
ment as  a  punishment  for  contempt,  as  distinguished  from  such 
infliction  intended  to  compel  action  for  the  benefit  of  a  party,  is  a 
final  decision  or  judgment  subject  to  review  by  writ  of  error  to  the 
Circuit  Court  of  Appeals. r 
§  1 8.  Diligence  in  prosecuting  civil  contempt. 

Where  a  complainant  has  waited  an  unreasonable  length  of 
time  to  commence  a  proceeding  for  an  attachment  for  contempt 
although  he  is  at  all  times  in  possession  of  the  facts  supporting 
such  proceeding,  the  application  will  be  denied  by  the  court.2 
§  19.  Punishment  for  civil  contempt. 

The  court  cannot  punish  a  civil  contempt  by  imprisonment 
for  a  definite  term.  The  only  punishment  is  by  fine  measured 
in  the  amount  of  the  pecuniary  injury,  and  the  party  against 
whom  the  proceeding  is  instituted  is  entitled  to  the  protection  of 
the  constitutional  provisions  against  self-incrimination. 3 
§  20.  Procedure  in  criminal  contempt. 

A  criminal  contempt  should  have  a  title  of  its  own,  inasmuch 
as  it  is  a  distinct  proceeding  from  the  main  cause. 4 

Proceedings  for  civil  contempt  are  between  the  original  parties 
and  are  instituted  and  tried  as  a  part  of  the  main  cause. 

Proceedings  at  law  for  criminal  contempt  are  between  the 
public  and  the  defendant,  and  are  not  a  part  of  the  original 
cause. s 
§21.  Information  against  defendant. 

There  is  no  fixed  formula  for  contempt  proceedings,   and 

1  Proudfit  L.  L.  Co.  v.  Kalamazoo  L.  L.  B.  Co.,  230  Fed.  920;  Bessette  v.  Conkey, 
194  U.  S.  324,  24  Sup.  Ct.  Rep.  6G7,  48  L.  Ed.  997;  In  re  Christensen,  194  U.  S.  458, 
24  Sup.  Ct.  Rep.  729,  48  L.  Ed.  1072;  see  also  Chap.  III.,  §  9. 

a  Matheson  v.  Hanna  Schoellkopf  Co.,  122  Fed.  836. 

3  Morehouse  v.  Giant  Powder  Co.,  206  Fed.  26;  Gompers  v.  Buck  Stove  &  Range 
Co.,  221  IT.  S.  418,  31  Sup.  Ct.  Rep.  492,  55  L.  Ed.  797. 

4  Anargyros  v.  Anargyros  &  Co.,  191  Fed.  208;  Phillips  Sheet  &  T.  P.  Co.  v. 
Amalgamated  A.  of  I.  S.  &  T.  W.,  208  Fed.  335. 

s  Gompers  v.  Buck  Stove  &  Range  Co.,  221  U.  S.  445,  31  Sup.  Ct.  Rep.  492,  55 
L.  Ed.  797. 
(202) 


Ch.  XIV)  CONTEMPT  OF  COURT — REVIEW  §§  22-24 

technical  accuracy  is  not  required.  It  is  sufficient  if  the  offense 
is  set  out,  so  that  the  defendant  is  clearly  informed  of  the  charges 
against  him  and  whether  a  criminal  or  civil  contempt  is  alleged; 
and  this  is  to  be  determined  by  examination  of  the  entire 
record. x 
§  22.  Contempt  out  of  court — Affidavits  necessary. 

It  is  the  generally  recognized  rule  that  process  of  arrest  for 
contempt  not  committed  in  the  court's  presence  can  properly 
issue  only  upon  the  filing  of  affidavit  stating  positively  the  facts 
and  in  such  way  as  prima  facie  to  show  the  commission  of  a 
contempt. 2 

Defendants  are  unquestionably  entitled  to  be  informed  of  the 
charge  made  against  them  and  so  clearly  and  definitely  as  not 
only  to  show  prima  facie  a  case  against  them,  but  that  when 
arraigned  they  might  know  what  answer  to  make  and  to  enable 
them  to  prepare  their  defense. 3 
§  23.  Criminal  contempt — Privileges  of  defendant. 

In  a  criminal  contempt  proceeding  the  defendant  cannot  be 
called  as  a  witness  against  himself  and  compelled  to  incriminate 
himself. 4 
§  24.  Weight  of  evidence  not  reviewed. 

It  is  a  well-established  principle  that  in  a  case  of  criminal 
contempt  the  trial  court  must  be  convinced  of  the  guilt  of  the 
accused  beyond  a  reasonable  doubt,  and  evidence  showing  guilt 
resulting  in  a  finding  of  such  facts  cannot  be  reviewed  by  an 

*  Creekmore  v.  United  States,  237  Fed.  743  (C.  C.  A.  8th  Cir.) ;  Schwartz  v. 
United  States,  217  Fed.  Rep.  868;  Gompers  v.  Buck's  Stove  &  Range  Co.,  221  U. 
S.  418,  31  Sup.  Ct.  492,  55  L.  Ed.  797,  34  L.  R.  A.  (N.  S.),  874;  Aaron  v.  United 
States,  155  Fed.  833,  84  C.  C.  A.  67;  United  States  v.  Huff  (D.  C),  206  Fed.  700. 

9  Sona  v.  Aluminum  Castings  Co.,  214  Fed.  Rep.  938. 

3  Sona  v.  Aluminum  Castings  Co.,  214  Fed.  Rep.,  939;  Gompers  v.  Buck's  Stove 
&  Range  Co.,  221  U.  S.  446,  31  Sup.  Ct.  492,  55  L.  Ed.  797,  34  L.  R.  A.  (N.  S.),  874; 
United  States  v.  Cruikshank,  92  U.  S.  542,  23  L.  Ed.  588. 

4  U.  S.  v.  Jose\  63  Fed.  951 ;  Counselman  v.  Hitchcock,  142  U.  S.  547,  12  Sup.  Ct. 
Rep.  195,  35  L.  Ed.  1110;  Merchants'  S.  &  G.  Co.  v.  Board  of  Trade  of  Chicago,  201 
Fed.  27;  Boyd  v.  U.  S.,  116  U.  S.  616,  6  Sup.  Ct.  Rep.  524,  29  L.  Ed.  746;  In  re 
Nickell,  47  Kansas  734,  28  Pac.  1076. 

(203) 


Ch.  XIV)  CONTEMPT  OF   COURT — REVIEW  §§  25~2S 

Appellate  Court.    The  inquiry  is  limited  to  the  question  whether 
there  was  any  evidence  upon  which  to  predicate  the  finding. l 
§  25.  Perjury  in  civil  proceeding — When  not  contempt. 

The  court  cannot  inflict  punishment  for  criminal  contempt  or 
apparent  perjury,  for  the  purpose  of  forcing  the  production  of  evi- 
dence or  payment  of  property  and  money  in  the  civil  proceeding. 2 

It  has,  however,  been  held  that  the  court  has  power  to  treat 
as  a  criminal  contempt  a  persistent  perjury  which  blocks  the 
inquiry,  on  the  ground  that  it  is  impossible  logically  to  distinguish 
between  the  case  of  a  downright  refusal  to  testify  and  that  of 
evasion  by  obvious  subterfuge  and  mere  formal  compliance. 3 
§  26.  Relation  to  original  proceeding. 

There  is  authority  for  the  proposition  that  the  criminal 
contempt  is  so  far  distinct  from  the  original  civil  proceedings 
that  the  order  of  injunction  must  be  formally  introduced.  But 
this  rule  is  too  technical.  The  better  view  is  that,  as  one  proceed- 
ing grows  out  of  the  other  and  is  collateral  to  it,  the  court  will 
take  judicial  notice  in  the  trial  of  the  latter  of  all  orders  made  in 
the  former.4 
§  27.  Decree  should  indicate  hearsay  evidence  rejected. 

Where  hearsay  evidence  is  admitted  at  a  hearing  for  contempt 
and  the  decree  finds  the  defendants  guilty  of  contempt  the  decree 
should  indicate  what  evidence  was  rejected  by  the  court. s 
§  28.  Nature  of  pleading. 

There  must  be  an  allegation  that  in  contempt  of  court  the 
defendant  has  disobeyed  the  order,  and  a  prayer  that  he  be 
attached  and  punished  therefor. 6 

1  Schwartz  v.  United  States,  217  Fed.  Rep.  868;  Bessette  v.  Conkey  Co.,  194  U.  S. 
338,  24  Sup.  Ct.  Rep.  665,  48  L.  Ed.  997. 

2  In  re  Rosenzweig,  206  Fed.  362. 

3  United  States  v.  Appel,  211  Fed.  495;  In  re  Schulman  (C.  C.  A.  2d  Cir.),  23  Am. 
Bankr.  Rep.  809,  177  Fed.  191,  101  C.  C.  A.  361. 

4  Schwartz  v.  United  States,  217  Fed.  Rep.  868. 
s  Oates  v.  United  States,  223  Fed.  1013. 

e  Gompers  v.  Buck  Stove  &  Range  Co.,  221  U.  S.  441,  31  Sup.  Ct.  Rep.  492,  55  L. 
Ed.  797. 
(204) 


Ch.  XIV)  CONTEMPT   OF   COURT — REVIEW  §§  29~31 

§  29.  Disobedience  of  order  of  Supreme  Court. 

Aiding  and  abetting  or  participating  in  the  execution  or 
attempted  execution  of  a  prisoner  sentenced  by  a  State  Court 
and  held  in  jail  pending  the  disposition  of  a  writ  of  habeas  corpus 
constitutes  a  contempt  of  court.  The  contempt  is  not  mitigated 
nor  destroyed  by  the  fact  that  the  Federal  Court  had  no  juris- 
diction to  issue  the  writ.  If  the  attempted  murder  takes  place 
during  the  pendency  of  an  appeal  in  the  Supreme  Court  of  the 
United  States,  it  will  constitute  a  contempt  of  the  Supreme 
Court. z 
§  30.  Cannot  be  purged  by  mere  answer. 

A  mere  answer  under  oath  denying  the  charges  set  forth  in 
the  contempt  proceedings  is  insufficient  to  entitle  a  party  charged 
with  contempt  to  a  discharge.  If  a  prima  facie  case  is  shown 
for  the  prosecution,  the  defendant  must  answer  and  prove 
his  innocence  in  the  same  manner  as  in  any  other  criminal 
case. 2 
§31.  Contempt  conviction  no  bar  to  criminal  prosecution. 

A  conviction  upon  a  charge  of  contempt  for  an  offense  which 
is  also  a  crime  does  not  bar  a  prosecution  for  the  crime. 3 

An  act  which  is  contempt  of  court  and  also  a  crime  may  be 
punished  both  by  the  summary  provision  and  by  the  indictment, 
and  neither  will  bar  the  other. 4 

1  United  States  v.  Shipp,  203  U.  S.  563,  27  Sup.  Ct.  Rep.  165,  51  L.  Ed. 
319;  United  States  v.  Shipp,  214  U.  S.  386,  29  Sup.  Ct.  Rep.  637,  53  L.  Ed. 
1041. 

2  United  States  v.  Shipp,  203  U.  S.  563,  27  Sup.  Ct.  Rep.  165,  51  L.  Ed.  319; 
United  States  v.  Shipp,  214  U.  S.  386,  29  Sup.  Ct.  Rep.  637,  53  L.  Ed.  1041;  United 
States  v.  Huff,  208  Fed.  703;  In  re  Savin,  Petitioner,  131  U.  S.  267,  9  Sup.  Ct.  Rep. 
699,  33  L.  Ed.  150;  Kirk  v.  United  States,  192  Fed.  273. 

3  Merchants'  Stock  &  Grain  Co.  v.  Board  of  Trade,  201  Fed.  20;  United  States  v. 
Sweeney,  95  Fed.  445;  O'Neal  v.  U.  S.,  190  U.  S.  36,  23  Sup.  Ct.  Rep.  776,47 
L.  Ed.  945;  Bessette  v.  Conkey,  194  U.  S.  324,  24  Sup.  Ct.  Rep.  665,  48  L. 
Ed.  997. 

-» Chicago  Directory  Co.  v.  United  States  Directory  Co.,  123  Fed.  194;  O'Neil  v. 
People,  113  111.  App.  195;  Phillips  S.  &  T.  P.  Co.  v.  Amalgamated  Ass'n,  208  Fed. 
335. 

(205) 


Cll.  XIV)  CONTEMPT  OF   COURT — REVIEW  §§  32-37 

§  32.  Criminal  Contempt — Mode  of  review. 

A  judgment  of  criminal  contempt  is  reviewable  only  by  writ 
of  error. * 
§  33.  Criminal  contempt  by  a  stranger  to  record. 

A  punitive  contempt  against  one  not  a  party  to  the  suit  can 
be  reviewed  by  writ  of  error  only,  and  not  by  appeal. 2 
§  34.  Petition  to  revise  in  civil  contempt  in  bankruptcy. 

Review  of  a  judgment  of  a  civil  contempt  growing  out  of  a 
bankruptcy  proceeding  is  reviewable  by  a  petition  to  revise. 3 
§  35.  Mandamus  from  Supreme  Court  to  Court  of  Appeals  to 
entertain  jurisdiction  in  contempt. 

Mandamus  is  the  proper  remedy  to  compel  the  Circuit  Court  of 
Appeals  to  take  jurisdiction  of  a  writ  of  error  in  a  contempt  case. 4 
§  36.  Innocent  conduct  as  contempt — Review  of  State  Court. 

A  Federal  question  is  piesented  if  a  State  Court  makes 
innocent  conduct  as  an  arbitrary  pretense  for  an  arbitrary  punish- 
ment for  contempt  of  court,  but  minor  matters  of  local  law, 
punishable  by  local  law  cannot  be  reviewed  in  any  form  by  a 
Federal  tribunal. s 
§  37.  Imprisonment. 

Imprisonment  in  the  penitentiary  for  a  year  and  a  day  may  be 
inflicted  for  contempt  of  court. 6 

1  Bessette  v.  W.  B.  Conkey  Co.,  194  U.  S.  324,  24  Sup.  Ct.  Rep.  665,  48  L.  Ed. 
997;Bucklin  v.  United  States,  159  U.  S.  681,  16  Sup.  Ct.  Rep.  182,  40  L.  Ed.  304; 
Gompers  v.  Buck's  Stove  &  Range  Co.,  221  U.  S.  418;  O'Neal  v.  U.  S.,  190  U.  S.  36, 
23  Sup.  Ct.  Rep.  776,  47  L.  Ed.  945;  Grant  v.  United  States,  227  U.  S.  78,  33  Sup. 
Ct.  Rep.  190,  57  L.  Ed.  423 ;  see  also  Chap.  II.,  §  9. 

a  Bessette  v.  Conkey,  194  U.  S.  324,  24  Sup.  Ct.  Rep.  665,  48  L.  Ed.  997. 

3  Freed  v.  Central  Trust  Co.  of  Illinois,  215  Fed.  873  (C.  C.  A.  7th  Circuit). 

"  Re  Merchants'  Stock  &  Grain  Co.,  223  U.  S.  639, 642,  32  Sup.  Ct.  Rep.  339,  56 
L.  Ed.  584;  In  re  Christensen  Engineering  Co.,  194  U.  S.  458,  24  Sup.  Ct.  Rep.  729, 
48  L.  Ed.  1072. 

s  Patterson  v.  Colorado,  ex  rel.  Attorney-General,  205  U.  S.  454,  466, 27  Sup.  Ct. 
Rep.  556,  51  L.  Ed.  879. 

6Creekmore  v.  U.  S.,  237  Fed.  743. 


(206) 


Ch.  XV) 


PEDERAL   APPELLATE    PROCEDURE 


CHAPTER  XV 

Federal  Appellate  Procedure. 

I.  Preliminary  Steps  for  Securing  Appeal  or  Writ  of  Error 


Sec.  Sec. 

1.  Former    practice  of    King's   Bench  22. 

retains     to     limited     extent     in  23. 
Supreme  Court. 

2.  Time  for  appeal,  etc. — to  Supreme  24. 

Court,  three  months;    Philippine  25. 

Islands,  six  months.  26. 

3.  Time  for  appeal  or  error  to  U.  S.  27. 

Court  of  Appeals — six  months.  28. 

4.  In  interlocutory  appeals — 30  days.  29. 

5.  In  civil  anti-trust  causes — 60  days. 

6.  In  capital  cases — 60  days.  30. 

7.  Date  of  allowance  of  appeal  or  error 

not  material,  if  prayed  in  time. 

8.  When  the  time  to  appeal  may  be  31. 

extended.  32. 

9.  How  time  is  calculated.  33. 

10.  When     the     time     commences    to  34. 

run.  35. 

11.  Time  to  appeal  cannot  be  extended  36. 

by  stipulation.  37. 

12.  Who  may  allow  appeal  or  error  to  38. 

the  U.  S.  Supreme  Court. 

13.  To  U.  S.  Court  of  Appeals. 

14.  Power  of  judge  of  Circuit  Court  of  39. 

Appeals.  40. 

15.  Special    procedure    in    bankruptcy  41. 

appeals. 

16.  In  bankruptcy  appeals  joint  parties  42. 

must  unite  or  sever  record.  43. 

17.  Petition  and  assignment  of  errors.  44. 

18.  Order  allowing  appeal  or  error.  45. 

19.  Writ    of    error — How    issued    and 

served.  46. 

20.  Form  of  writ  of  error.  47. 

21.  Describing  the  parties.  48. 


Amendment  of  writ  of  error. 

Assignment  of  errors — Necessity  for 
assignment  of  error. 

Prayer  for  reversal. 

Form  of  assignment  of  errors. 

Assignments  held  bad. 

Assignments  held  good. 

Effect  of  plain  error. 

Cross-assignments  of  error  not  per- 
mitted.    Cross-appeals. 

Where  both  parties  appeal  to  the 
Supreme  Court,  one  record  suffi- 
cient. 

Bond — The  statute. 

In  criminal  cases. 

Filing  the  bond. 

Who  must  sign  bond. 

Who  may  approve. 

To  whom  made. 

Time  for  filing  bond. 

Citation. 

(a)  The  Statute. 

(b)  The  Rule  of  Court. 

Time  of  return  of  citation. 

Appellate  Court  may  issue  citation. 

When  lack  of  citation  is  not  jurisdic- 
tional. 

Parties  to  citation. 
When  citation  unnecessary. 
Necessary  if  bond  filed  after  term. 
Necessary    if    appeal    taken    after 

term. 
Imperative  on  writ  of  error. 
Waiver  of  objection  to  insufficiency. 
Service  on  attorney  sufficient. 

(207) 


Ch.  XV)  FEDERAL  APPELLATE   PROCEDURE  §§  1-3 

Sec.  Sec. 

49.  Supersedeas — Time  for  application      57.  Effect  of  perfecting  appeal  on  writ 

— GO  days.  of  error.     Transfer  of  jurisdiction. 

(a)  The  Statute.  58.  Proceedings  in  the  lower  court. 

(b)  The  Rule  of  Court.  59.  A  matter  of  right. 

50.  Prerequisites  for  supersedeas.  00.  Setting  aside  appeal. 

51.  Lodgment  of  writ  of  error.  61.  Second  appeal — When  allowed. 

52.  A  matter  of  right — function  of  court.  62.  Second  appeal  subsequent  to  man- 

53.  Requiring  better  security.  date. 

54.  Supersedeas    and    bail    in    criminal  63.  Special    procedure   in    admiralty — 

cases.  Taking  the  appeal. 

55.  Stay  of  death  penalty — The  Statute.     64.  Supersedeas  in  admiralty. 

56.  Time  for  filing. 

§  i.  Former  practice  of  King's  Bench  retains  to  limited  extent 
in  Supreme  Court. 
Rule  3  of  the  U.  S.  Supreme  Court  provides : 

"This  Court  considers  the  former  practice  of  the  Courts  of  King's  Bench  and 
of  Chancery  in  England,  as  affording  outlines  for  the  practice  of  this  Court: 
and  will  from  time  to  time  make  such  alterations  therein  as  circumstances  may 
render  necessary." 

§  2.  Time  for  appeal,  etc. — to  Supreme  Court,  three  months; 
Philippine  Islands,  six  months. 

By  the  Act  of  September  6,  1916,  Chapter  448,  Section  6, 
it  is  now  the  law  that  "no  writ  of  error,  appeal,  or  writ  of  certiorari 
intended  to  bring  upany  cause  for  review  by  the  Supreme  Court 
shall  be  allowed  or  entertained  unless  duly  applied  for  within 
three  months  after  entry  of  the  judgment  or  decree  complained 
of:  Provided,  That  writs  of  certiorari  addressed  to  the  Supreme 
Couit  of  the  Philippine  Islands  may  be  granted  if  application 
therefor  be  made  within  six  months."  (39  Stat.  L.) 
§  3.  Time  for  appeal  or  error  to  U.  S.  Court  of  Appeals — six 
months. 

Section  11  of  the  Act  of  March  3,  1891,  provides: 

"That  no  appeal  or  writ  of  error  by  which  any  order,  judgment,  or  decree  may 
be  reviewed  in  the  Circuit  Court  of  Appeals  under  the  provisions  of  this  act 
shall  be  taken  or  sued  out  except  within  six  months  after  the  entry  of  the  order, 
judgment,  or  decree,  sought  to  be  reviewed:  Provided,  however,  That  in  all 

(20S) 


Ch.  XV)  FEDERAL  APPELLATE   PROCEDURE  §§  4-7 

cases  in  which  a  lesser  time  is  now  by  law  limited  for  appeals  or  writs  of  error 
such  limits  of  time  shall  apply  to  appeals  or  writs  of  error  in  such  cases  taken 
to  or  sued  out  from  the  Circuit  Court  of  Appeals.  And  all  provisions  of  law 
now  in  force  regulating  the  methods  and  system  of  review,  through  appeals  or 
writs  of  error,  shall  regulate  the  methods  and  system  of  appeals  and  writs  of 
error  provided  for  in  this  act  in  respect  of  the  Circuit  Courts  of  Appeals,  includ- 
ing all  provisions  for  bonds  or  other  securities  to  be  required  and  taken  on  such 
appeals  and  writs  of  error.  And  any  judge  of  the  Circuit  Courts  of  Appeals,  in 
respect  of  cases  brought  or  to  be  brought  to  that  court,  shall  have  the  same  powers 
and  duties  as  to  the  allowance  of  appeals  or  writs  of  error,  and  the  conditions 
of  such  allowance,  as  now  by  law  belong  to  the  justices  or  judges  in  respect  of 
the  existing  courts  of  the  United  States  respectively." 

§  4.  In  interlocutory  appeals — 30  days. 

Appeal  must  be  taken  within  thirty  (30)  days  from  entry  of 
order  appealed  from.1 
§  5.  In  civil  anti-trust  causes — 60  days. 

Appeals  to  Supreme  Court  must  be  taken  within  sixty  (60) 
days  from  entry  of  final  decree  under  §  2,  Act  of  February  11, 
1903. 2 

But  it  would  seem  that  under  the  statute  quoted  in  §  2  the 
time  is  extended  to  three  months. 
§  6.  In  capital  cases — 60  days. 

Writ  of  error  in  capital  cases  must  be  filed  in  same  term  or 
within  sixty  (60)  days  after  expiration  of  term  of  court  at  which 
trial  had,  when  allowed  for  cause.3 

§  7.  Date  of  allowance  of  appeal  or  error  not  material,  if  prayed 
in  time. 

When  an  appeal  is  prayed  within  the  statutory  time,  the  mere 
date  of  its  allowance  by  the  court  is  not  controlling.4 

1  Ward  Baking  Co.  v.  Weber  Bros.,  230  Fed.  142;  Hultberg  v.  Anderson,  214  Fed. 
3S0,  §  129  Federal  Judicial  Code;  Re  Haberman  Mfg.  Co.,  147  U.  S.  530,  37  L.  Ed. 
2G6,  13  Sup.  Ct.  Rep.  527;  Rowan  v.  Ide,  107  Fed.  161,  46  C.  C.  A.  214;  Root  v. 
Mills,  168  Fed.  6S8,  94  C.  C.  A.  174;  Baxter  v.  Beval  Phillips  &  Co.,  219  Fed.  309. 

a  §  2,  C.  544,  1003,  32  Stat.  823. 

3  §  6,  Act.  Feb.  6,  18S9,  C.  113,  25  Stat.  656. 

4  Randall  Co.  v.  Fogleson  Machine  Co.,  200  Fed.  741,  119  C.  C.  A.  185;  U.  S. 
v.  Vigil,  10  Wall.  423,  19  L.  Ed.  954;  Cardona  v.  Qumones,  240  U.  S.  83,  36  Sup. 
Ct.  Rep.  346,  60  L.  Ed.  538. 

*  (209) 


Ch.  XV)  FEDERAL  APPELLATE   PROCEDURE  §§  8-11 

§  8.  When  the  time  to  appeal  may  be  extended. 

When  the  delay  in  securing  the  appeal  or  error  was  not  the 
fault  of  appellant,  the  time  may  be  extended.1 
§  9.  How  time  is  calculated. 

Care  should  be  taken  to  file  the  papers  at  once  with  the  clerk 
of  the  court  in  which  the  judgment  was  rendered,  because  it  is 
the  issuing  and  filing  of  the  writ  with  the  clerk  of  the  court  which 
entered  the  judgment  appealed  from  that  removes  the  record 
from  the  inferior  court  to  the  Appellate  Court.  The  period  of 
limitation  presci  ibed  by  the  statute  is  calculated  as  of  the  day  of 
filing  of  the  papers  and  not  from  the  date  of  the  allowance  of  the 
writ.  The  writ  is  not  sued  out  until  filed  with  the  clerk  of  the  court 
which  entered  the  judgment  with  a  copy  for  the  opposite  party. 2 
§  10.  When  the  time  commences  to  run. 

The  time  does  not  commence  to  run  until  the  court  has  dis- 
posed of  a  petition  for  rehearing  or  motion  to  set  aside  the 
judgment  or  decree.3 
§  11.    Time  to  appeal  cannot  be  extended  by  stipulation. 

The  statutory  time  to  take  an  appeal  or  error  cannot  be  extended 
by  stipulation  of  the  parties  or  the  court.     It  is  jurisdictional.4 

1  Randall  Co.  v.  Pogleson  Mach.  Co.,  200  Fed.  741,  119  C.  C.  A.  185;  Toledo 
M.  W.  Co.  v.  Foyer  Bros.  &  Co.,  223  Fed.  350,  351. 

3  Robins  Dry  Dock  Co.,  216  Fed.  14;  Kentucky  Coal  &  Lumber  Co.  v.  Howes, 
153  Fed.  163,  82  C.  C.  A.  337;  City  of  Waxahachie  v.  Coler,  92  Fed.  284;  U.  S.  v. 
Basler,  51  Fed.  624  (C.  C.  A.);  Cincinnati  S.  &  L.  Co.  v.  Grand  Rapids  S.  D.  Co., 
146  U.  S.  55,  13  Sup.  Ct.  Rep.  13,  36  L.  Ed.  886;  Mutual  Life  Ins.  Co.  v.  Phinney, 
178  U.  S.  327,  20  Sup.  Ct.  Rep.  906,  44  L.  Ed.  1088;  Threadgill  v.  Piatt,  71  Fed. 
3;  Blaffer  v.  New  Orleans  Water  Supply  Co.,  160  Fed.  391;  Stevens  v.  Clark,  62 
Fed.  321  (C.  C.  A.) ;  Green  v.  Lynn  (C.  C.  A.),  87  Fed.  839;  Johnson  v.  Meyers  (C.  C. 
A.),  54  Fed.  417;  Scarborough  v.  Pargoud,  108  U.  S.  568,2  Sup.  Ct.  Rep.  877,  27  L. 
Ed.  824. 

3  Omaha  El.  L.r_8c  P.  Co.  v.  City  of  Omaha,  216  Fed.  848;  Baxter  v.  Beval 
Phillips  &  Co.,  219  Fed.  309;  Aspen  Min.  Co.  v.  Billings,  150  U.  S.  31,  14  Sup.  Ct. 
Rep.  4,  37  L.  Ed.  986;  Kingman  v.  Western  Mfg.  Co.,  170  U.  S.  675,  18  Sup.  Ct. 
Rep.  786,  42  L.  Ed.  1192. 

*  Darnell  v.  Illinois  C.  R.  Co.,  206  Fed.  445;  1st  National  Bank  of  Fort  Wayne 
v.  Library  Bureau,  211  Fed.  113;  In  re  Donnelly,  211  Fed.  118;  Stevens  v.  Clark, 
62  Fed.  324,  10  C.  C.  A.  379. 

(210) 


Ch.  XV)  FEDERAL  APPELLATE   PROCEDURE  §§  12-15 

§  12.  Who  may  allow  appeal  or  error  to  the  Supreme  Court  of 
the  United  States. 
Paragraph  1  of  Supreme  Court  Rule  36  provides: 

"An  appeal  or  a  writ  of  error  from  a  district  court  direct  to  this  court,  in 
the  cases  provided  for  in  Sections  238  and  252  of  the  act  entitled  'An  act  to 
codify,  revise,  and  amend  the  laws  relating  to  the  judiciary, '  approved  March 
3, 1911,  Chapter  231,  may  be  allowed,  in  term  time  or  in  vacation,  by  any  justice 
of  this  court,  or  by  any  circuit  judge  within  his  circuit,  or  by  any  district  judge 
within  his  district,  and  the  proper  security  be  taken  and  the  citation  signed  by 
him,  and  he  may  also  grant  a  supersedeas  and  stay  of  execution  or  of  proceedings, 
pending  such  writ  of  error  or  appeal." 

§  13.  To  U.  S.  Court  of  Appeals. 

Appeals  or  writs  of  error  to  the  U.  S.  Circuit  Court  of  Appeals 
from  the  District  Court  may  be  allowed  by  a  judge  of  the  District 
Court,  and  any  judge  or  justice  of  the  United  States  Court  of 
Appeals  or  a  justice  of  the  Supreme  Court  assigned  to  the  judi- 
cial circuit  has  the  power  to  allow  an  appeal  or  writ  of  error  to 
the  United  States  Circuit  Court  of  Appeals  and  to  grant  super- 
sedeas and  make  all  orders  relating  to  the  perfection  of  the  ap- 
peal. The  practice  is  substantially  the  same  as  in  the  U.  S. 
Supreme  Court  except  in  so  far  as  may  be  modified  by  some  rule 
of  court. r 
§  14.  Power  of  judge  of  Circuit  Court  of  Appeals. 

Section  132  of  the  Federal  Judicial  Code  provides : 

"Any  judge  of  a  Circuit  Court  of  Appeals,  in  respect  of  cases  brought  or  to 
be  brought  before  that  Court,  shall  have  the  same  powers  and  duties  as  to  al- 
lowances of  appeals  and  writs  of  error,  and  the  conditions  of  such  allowances, 
as  by  law  belong  to  the  justices  or  judges  in  respect  of  other  courts  of  the  United 
States  respectively."2 

§  15.  Special  procedure  in  bankruptcy  appeals. 

The  procedure  in  bankruptcy  appeals  is  the  same  as  in  cases 
in  equity. 

1  See  Rule  XXXV.,  U.  S.  Court  of  Appeals,  2d  Circuit. 

9  For  form  of  petition,  assignments  of  error,  order  allowing  appeal  or  error, 
citation,  and  bond,  see  appendix. 

(211) 


Ch.  XV)  FEDERAL  APPELLATE  PROCEDURE  §§  1G-17 

Bankruptcy  Rule  XXXVI.   promulgated  by  the   Supreme 
Court  of  the  U.S.  provides : 

"  1.  Appeals  from  a  Court  of  Bankruptcy  to  a  Circuit  Court  of  Appeals,  or 
to  the  Supreme  Court  of  a  Territory,  shall  be  allowed  by  a  Judge  of  the  Court 
appealed  from  or  of  the  Court  appealed  to,  and  shall  be  regulated,  except  as 
otherwise  provided  in  the  Act,  by  the  rules  governing  appeals  in  equity  in  the 
Courts  of  the  United  States. 

"2.  Appeals  under  the  Act  to  the  Supreme  Court  of  the  United  States  from 
a  Circuit  Court  of  Appeals,  or  from  the  Supreme  Court  of  a  Territory,  or  from 
the  Supreme  Court  of  the  District  of  Columbia,  or  from  any  Court  of  bankruptcy 
whatever,  shall  be  taken  within  thirty  days  after  the  judgment  or  decree,  and 
shall  be  allowed  by  a  Judge  of  the  Court  appealed  from,  or  by  a  Justice  of  the 
Supreme  Court  of  the  United  States. 

"3.  In  every  case  in  which  either  party  is  entitled  by  the  act  to  take  an 
appea1  to  the  Supreme  Court  of  the  United  States,  the  Court  from  which  the 
appeal  lies  shall,  at  or  before  the  time  of  entering  its  judgment  or  decree,  make 
and  file  a  finding  of  the  facts,  and  its  conclusions  of  law  thereon,  stated  sepa- 
rately; and  the  record  transmitted  to  the  Supreme  Court  of  the  United  States 
on  such  an  appeal  shall  consist  only  of  the  pleadings,  the  judgment  or  decree, 
the  finding  of  facts,  and  the  conclusions  of  law." 

§  1 6.  In  bankruptcy  appeals  joint  parties  must  unite  or  sever 
record. 

The  general  rule  that  parties  against  whom  a  joint  judgment 
or  order  is  rendered  must  unite  in  an  appeal  or  sever  the  record 
is  applicable  to  appeals  in  bankruptcy  proceedings. x 
§  17.  Petition  and  assignment  of  errors. 

Par.  1  of  Rule  35  of  the  U.  S.  Supreme  Court  prescribes  the 
method  of  assigning  errors,  and  is  as  follows: 

"  1.  Where  an  appeal  or  a  writ  of  error  is  taken  from  a  District  Court  direct 
to  this  Court,  under  Section  238  of  the  act  entitled  'An  act  to  codify,  revise, 
and  amend  the  laws  relating  to  the  judiciary, '  approved  March  3,  1911,  Chapter 
231,  the  plaintiff  in  error  or  appellant  shall  file  with  the  clerk  of  the  court  below, 
with  his  petition  for  the  writ  of  error  or  appeal,  an  assignment  of  errors,  which  shall 
set  out  separately  and  particularly  each  error  asserted  and  intended  to  be  urged. 
No  writ  or  error  or  appeal  shall  be  allowed  until  such  assignment  of  errors  shall 
have  been  filed.     When  the  error  alleged  is  to  the  admission  or  to  the  rejection 


1  In  re  Dandridge  &  Pugh,  209  Fed.  838;  see  Chapter  III.,  Severance,  §§  11-14. 
For  further  particulars  on  bankruptcy  appeals  see  Chap.  VI. 

(212) 


Ch.  XV)         FEDERAL  APPELLATE  PROCEDURE  §§  18-19 

of  evidence,  the  assignment  of  errors  shall  quote  the  full  substance  of  the  evi- 
dence admitted  or  rejected.  When  the  error  alleged  is  to  the  charge  of  th  court, 
the  assignment  of  errors  shall  set  out  the  part  referred  to  totidem  verbis,  whether 
it  be  in  instructions  given  or  in  instructions  refused.  Such  assignment  of 
errors  shall  form  part  of  the  transcript  of  the  record,  and  be  printed  with  it. 

"When  this  is  not  done  counsel  will  not  be  heard,  except  at  the  request  of 
the  court;  and  errors  not  assigned  according  to  this  rule  will  be  disregarded, 
but  the  court  at  its  option,  may  notice  a  plain  error  not  assigned." 

The  above  requirements  are  identical  in  the  U.  S.  Circuit 
Court  of  Appeals  for  the  second  circuit. " 
§  1 8.  Order  allowing  appeal  or  error. 

An  appeal  is  allowed  by  taking  the  security  and  signing  the 
citation,  although  no  formal  order  of  allowance  was  made.2 

The  better  and  safer  practice  is,  however,  to  have  an  order 
allowing  the  appeal  duly  signed.     The  judge  acts  in  the  capacity 
of  judge  and  not  as  a  court.3 
§  19.  Writ  of  error — How  issued  and  served. 

A  writ  of  error  may  be  issued  by  the  clerk  of  the  District 
Court  or  Supreme  Court.4 

A  writ  of  error  is  usually  served  by  the  depositing  of  a  copy 
of  same  for  the  benefit  of  the  adverse  party  with  the  clerk  of 
the  court  to  which  it  is  addressed.5 

The  absence  of  a  seal  on  a  writ  of  error  does  not  invalidate 
the  writ.6 

A  writ  of  error  must  be  filed  with  the  clerk  of  the  court 

1  See,  Court  of  Appeals,  Rule  XI. 

'Kendrick  v.  Roberts,  214  Fed.  268;  Sage  v.  Railroad  Company,  96  U.  S.  712, 
24  L.  Ed.  641 ;  Draper  v.  Davis,  102  U.  S.  370,  26  L.  Ed.  121 ;  Brandies  v.  Cochrane, 
105  U.  S.  262,  26  L.  Ed.  989;  Re  Goodman,  101  Fed.  920,  42  C.  C.  A.  85;  Farmers' 
Loan  &  Trust  Co.  v.  Chicago  N.  P.  R.  Co.,  73  Fed.  314,  19  C.  C.  A.  477;  Chamber- 
lain Transportation  Co.  v.  South  Pier  Coal  Co.,  126  Fed.  167,  61  C.  C.  A.  109. 

3  For  form  of  order  see  appendix. 

4  Ex  parte  Ralston,  119  U.  S.  614,  7  Sup.  Ct.  Rep.  317,  30  L.  Ed.  506.  For 
form  see  Freeman  v.  U.  S.  227  Fed.  732. 

s  U.  S.  v.  Alamagorda  Lumber  Co.,  202  Fed.  700;  Davidson  v.  Laurel,  4  Wall. 
447,  18  L.  Ed.  377;  Wood  v.  Lide,  4  Cranch  181,  2  L.  Ed.  5SS. 

6  Chicago  Great  Western  R.  R.  Co.  v.  Le  Valley,  233  Fed.  384,  386,  but  see 
Washington  v.  Dennison,  6  Wall.  495,  18  L.  Ed.  863. 

(213) 


Ch.  XV)  FEDERAL  APPELLATE  PROCEDURE  §§  20-22 

which  rendered  the  judgment  and  transmitted  to  the  court  or 
the  case  will  not  be  considered.1 

It  has  been  held  in  one  case  that  it  is  indispensable  that  the 
clerk  should  put  his  file  mark  upon  the  writ  of  error. 2 
§  20.  Form  of  writ  of  error. 

The  form  prescribed  by  the  Supreme  Court  of  the  United 
States  provides  that  the  writ  should  be  issued  in  the  name  of 
the  President  of  the  United  States  and  have  the  teste  of  the  Chief 
Justice  and  the  clerk  of  the  Supreme  Court  of  the  United  States. 
By  a  later  act  the  clerks  of  the  District  Court  have  also  the  power 
to  sign  the  writ  of  error.  Accordingly,  the  clerk  of  the  State  Court 
therefore  has  no  power  to  sign  the  writ.  Upon  the  allowance  of 
the  writ  of  error  by  the  Chief  Justice  of  the  highest  court  of  a 
state,  or  a  justice  of  the  Supreme  Court,  the  order  should  be 
presented  to  the  clerk  of  the  U.  S.  Supreme  Court  or  U.  S.  District 
Court  for  signature  and  attestation.3 
§  21.  Describing  the  parties. 

It  is  imperative  that  the  writ  of  error  shall  contain  the  full 
names;  and  not  merely  the  firm  name  of  all  the  parties  to  the 
record. 4 
§  22.  Amendment  of  writ  of  error. 

It  is  discretionary  with  the  court  to  permit  or  deny  an  amend- 
ment of  the  writ  of  error. s 

1 U.  S.  v.  Alamo— Lumber  Co.,  202  Fed.  700,  121  C.  C.  A.  162. 
3  U.  S.  v.  Lombardo,  228  Fed.  989;  Mutual  Life  Ins.  Co.  v.  Phinney,  76  Fed.  617, 
22  C.  C.  A.  425. 

3  Ex  parte  Ralston,  119  U.  S.  613,  30  L.  Ed.  506,  7  Sup.Ct.  Rep.  317;  Bondurant 
v.  Watson,  103  U.  S.  278;  Smith  v.  Currie,  230  Fed.  803,  26  L.  Ed.  447. 

4  The  Bylands,  231  Fed.  101;  Rumiger  v.  Puget  S.  El.  Co.  220  Fed.  419; 
Godbe  v.  Tootle,  154  U.  S.  576,  14  Sup.  Ct.  Rep.  1167,  19  L.  Ed.  831;  Estes 
v.  Trabue,  128  U.  S.  225,  9  Sup.  Ct.  Rep.  58,  32  L.  Ed.  437;  Gumble  v.  Pitkin 
113  U.  S.  545,  5  Sup.  Ct.  Rep.  616,  28  L.  Ed.  1128;  Pearson  v.  Yewdall,  95  U.  S. 
294,  24  L.  Ed.  436;  Wilson  v.  Life  &  F.  Ins.  Co.,  12  Pet.  140,  9  L.  Ed.  1032;  Miller 
v.  McKenzie,  10  Wall.  582,  19  L.  Ed.  1043;  Deneale  v.  Archer,  8  Pet.  526, 8  L.  Ed. 
1032;  Smyth  v.  Stradcr,  12  How.  327,  13  L.  Ed.  1008. 

s  Rumiger  v.  Puget  S.  El.  Co.,  supra;  Pearson  v.  Yewdall,  95  U.  S.  294,  24  L. 
Ed.  436. 

(214) 


Ch.  XV)  FEDERAL   APPELLATE   PROCEDURE  §§  23 

A  writ  of  error  may  be  corrected  by  inserting  the  name  of  a 
party  omitted  by  mistake.1 

But  a  defect  in  allowing  or  issuing  the  writ  is  amendable.2 
§  23.  Assignment    of    errors  —  Necessity    for    assignment    of 
error. 

"4.  When  there  is  no  assignment  of  errors,  as  required  by  Section  997  of 
the  Revised  Statutes,  counsel  will  not  be  heard,  except  at  the  request  of  the 
court ;  and  errors  not  specified  according  to  this  rule  will  be  disregarded ;  but  the 
court,  at  its  option,  may  notice  a  plain  error  not  assigned  or  specified."3 

Section  997  of  the  Rev.  Stat,  of  U.  S.  provides  that  "there 
shall  be  annexed  to  and  returned  with  any  writ  of  error  for  the 
removal  of  a  cause,  at  the  day  and  place  therein  mentioned,  an 
authenticated  transcript  of  the  record,  and  assignments  of 
errors,  and  a  prayer  for  reversal,  with  a  citation  to  the  adverse 
party." 

Where  no  assignment  of  errors  has  been  annexed  to  or  re- 
turned with  the  writ,  as  required  by  Section  997  of  the  Revised 
Statutes,  the  writ  of  error  will  be  dismissed.4 

The  court  is  not  called  upon  to  consider  errors  argued  but 
not  assigned.5 

An  assignment  of  error  cannot  enlarge  the  Federal  question 
as  made  by  the  record.6 

A  Federal  appellate  tribunal  will  not  review  a  case  where 

1  Churchfield  El.  Co.  v.  Titus,  226  Fed.  574;  Gilbert  v.  Hopkins,  198  Fed.  849, 
118  C.  C.  A.  491. 

8  Miller  v.  Texas,  153  U.  S.  537,  38  L.  Ed.  813,  14  Sup.  Ct.  Rep.  874;  Texas  & 
R.  R.  Co.  v.  Kirk,  111  U.  S.  486,  4  Sup.  Ct.  Rep.  500,  28  L.  Ed.  481;  Long  v.  Far- 
mers' State  Bank,  147  Fed.  360,  77  C.  C.  A.  538;  Cotter  v.  Alabama,  R.  R.  Co.,  61 
Fed.  747,  10  C.  C.  A.,  35. 

3  §  4  of  Rule  21  of  U.  S.  Supreme  Court.  The  rule  has  been  followed.  Wood  v. 
Wilbert,  226  U.  S.  384,  33  Sup.  Ct.  Ref.  125,  57  L.  Ed.  265. 

4  Bernard  v.  Lea,  210  Fed.  583;  Micas,  v.  Williams,  104  U.  S.  556,  26  L.  Ed.  842. 
sParaiso  v.  United  States,  207  U.  S.  368,  28  Sup.  Ct.  Rep.  127,  52  L.  Ed.  249; 

O'Neil  v.  Vermont,  144  U.  S.  323,  12  Sup.  Ct.  Rep.  693,  36  L.  Ed.  450. 

6  Cleveland  &  P.  R.  Co.  v.  Cleveland,  235  U.  S.  50,  35  Sup.  Ct.  Rep.  21,  59  L. 
Ed.  127. 

(215) 


Ch.  XV)  FEDERAL   APPELLATE   PROCEDURE  §§  24-26 

there  is  no  assignment  of  errors  accompanying  the  transcript 
of  the  record. r 

An  appeal  cannot  be  allowed  without  assignment  of  errors.3 

It  is  too  late  to  raise  a  point  if  not  covered  by  an  assignment 
of  error,3  and  review  is  limited  to  errors~assigned. 4 
§  24.  Prayer  for  reversal. 

The  assignment  of  errors  accompanying  same  must  contain 
a  prayer  for  reversal  of  the  judgment  or  decree  appealed  from. 
If  not  specifically  prayed,  it  may  sometimes  be  inferred  from  the 
context  of  the  petitions. s 
§  25.  Form  of  assignment  of  errors. 

(a)  In  a  recent  case  the  Supreme  Court  of  the  U.  S.  deemed  it 
proper  to  repeat  the  warning  given  in  Phillips  &  Colby  Construc- 
tion Co.  v.  Seymour  (91  U.  S.  643,  23  L.  Ed.  342),  that  the 
practice  of  filing  a  large  number  of  assignments  cannot  be  ap- 
proved. It  perverts  the  purpose  sought  to  be  subserved  by  the 
rule  requiring  assignments.  It  points  to  nothing  and  thwarts 
the  purpose  of  the  rule,  and  which  was  intended  to  present  to 
the  Court  a  clear  and  concise  statement  of  material  points  on 
which  plaintiff  intends  to  rely.6 
§  26.  Assignments  held  bad. 

Rulings  as  to  which  exception  was  not  taken  at  the  time,  or 
as  to  matters  not  set  out  in  the  assignment  of  error  and  requiring 
a  search  through  the  record  to  determine  the  alleged  error  will 
not  be  considered  on  review. 7 

1  Bernard  v.  Lea,  supra;  Stevenson  v.  Barbour,  140  TJ.  S.  48,  35  L.  Ed.  338,  11 
Sup.  Ct.  Rep.  690. 

3  Baxter  v.  Beval  Phillips,  219  Fed.  309;  Long  v.  Marwell,  59  Fed.  948,  8  C.  C. 
A.  410. 

J  Connell  Bros.  Co.  v.  Diederichsen  &  Co.,  213  Fed.  737,  130  C.  C.  A.  251. 

4  Arnold  v.  Harrigan,  238  Fed.  39. 

s  U.  S.  Motion  P.  Co.,  230  Fed.  541 ;  Sect.  997  of  Rev.  St.  of  U.  S.,  Rule  8,  §  1  of 
U.  S.  Supreme  Court;  Rule  14  of  U.  S.  Court  of  Appeals  2d  circuit;  Springfield 
Safe  Deposit  Co.  v.  City  of  Attica,  56  U.  S.  App.  330,  85  Fed.  387. 

6  Central  Vermont  R.  Co.  v.  White,  238  U.  S.  507,  35  Sup.  Ct.  Rep.  865,  59  L. 
Ed.  1433. 

»  Matheson  v.  United  States,  227  U.  S.  541,  33  Sup.  Ct.  Rep.  355,  57  L.  Ed.  631. 
(216) 


Ch.  XV)  FEDERAL  APPELLATE   PROCEDURE  §  26 

An  assignment  of  error  is  bad,  if  it  is  necessary  to  look  beyond 
its  terms  to  the  brief  for  a  specific  statement  of  the  question 
sought  to  be  presented. * 

General  assignments  of  errors  will  not  be  entertained. 2 

Unless  the  assignment  of  error  is  in  accordance  with  Rule  11 
of  the  Circuit  Court  of  Appeals,  which  requires  each  error  as- 
serted and  intended  to  be  urged  to  be  set  out  separately  and 
particularly,  it  is  not  sufficient.3 

Assignments  of  error,  while  required  in  cases  brought  into  a 
reviewing  court  by  appeal  as  well  as  in  cases  brought  up  by  writ 
of  error,  are  not  good  unless  they  are  clearly  directed  to  the 
rulings  of  the  court.4 

Assignment  of  errors  relating  to  the  admission  or  rejection 
of  evidence  not  setting  out  in  totalis  verbis  the  evidence  com- 
plained of  will  not  be  considered.5 

The  U.  S.  Supreme  Court  will  not  consider  a  general  excep- 
tion to  the  charge  of  the  court  as  a  whole.6 


*  Bernard  v.  Lea,  supra;  Fountain  v.  Detroit  M.  T.  &  S.  L.  Ry.,  210  Fed.  982; 
Grape  Creek  Coal  Co.  v.  Farmers'  Loan  &  Trust  Co.,  63  Fed.  891  (C.  C.  A.  7th 
Cir.,  12  C.  C.  A.  350) ;  Thompkins  v.  Missouri  K.  &  T.  Ry.,  211  Fed.  391. 

3  Pacific  Teleg.  &  Tel.  Co.  v.  Hoffman,  208  Fed.  221;  Bogk  v.  Gassert,  149  U.  S. 
17,  37  L.  Ed.  631,  13  Sup.  Ct.  Rep.  738;  National  Bank  of  Commerce  v.  First 
National  Bank,  61  Fed.  809;  Philadelphia  Casualty  Co.  v.  Fechheimer,  220  Fed.  401; 
Randolph  v.  Allen,  73  Fed.  23, 19  C.  C.  A.  353. 

3  Thompkins  v.  Missouri  K.  &  T.  Ry.  Co.,  211  Fed.  391;  U.  S.  v.  Hammond,  226 
Fed.  849;  Natl.  Bk  of  Comm.  of  Kansas  City,  Mo.,  v.  First  Natl.  Bank  of  K.  C, 
Kansas,  et  al.,  61  Fed.  809. 

iH.  E.  Winterton  Gum  Co.  v.  Autosales  G.  &  E.  Co.,  211  Fed.  612;  Randolph 
v.  Allen,  et  al.,  73  Fed.  23,  19  C.  C.  A.  353. 

s  Cisco  v.  Looper,  236  Fed.  336  (C.  C.  A.  8th  Cir.),  Winterton  Gum  Co.  v.  Auto- 
sales Co.,  211  Fed.  612,  128  C.  C.  A.  212;  National  Bank  of  Commerce  of  Kansas 
City  v.  First  National  Bank,  61  Fed.  809  (C.  C.  A.  8th  Cir.);  Grand  Trunk  R.  R. 
Co.  v.  Ives,  144  U.  S.  408,  36  L.  Ed.  488,  12  Sup.  Ct.  Rep.  679;  Van  Stone  v.  Still- 
well  &  Bierce  Mfg.  Co.,  142  U.  S.  128, 35  L.  Ed.  961,  12  Sup.  Ct.  Rep.  181. 

«  Van  Stone  v.  Stillwell  &  Bierce  Mfg.  Co.,  142  U.  S.  128,  35  L.  Ed.  961, 12  Sup. 
Ct.  Rep.  181;  Lucas  v.  Brooks,  85  U.  S.,  18  Wall.  436,  21  L.  Ed.  779;  Burton  v. 
West  Jersey  Ferry  Co.,  114  U.  S.  474,  29  L.  Ed.  215,  5  Sup.  Ct.  Rep.  960;  Pacific 
T.  &  T.  Co.  v.  Hoffman,  208  Fed.  221. 

(217) 


Ch.  XV)         FEDERAL  APPELLATE  PROCEDURE  §  27 

An  assignment  of  error  grouping  together  a  series  of  instruc- 
tions presented  to  the  trial  court  and  constituting  a  single  request 
cannot  be  sustained.1 

Assignments  of  error,  where  the  decree  appealed  from  is  one 
confirming  a  Master's  report,  should  not  be  in  the  form  of 
elaborate  arguments  in  support  of  the  contention  that  the  court 
erred  in  sustaining  the  Master's  findings,  but  should  be  clearly- 
directed  to  the  rulings  of  the  court. 2 

The  law  is  well  settled  in  the  Federal  Courts  that  an  assign- 
ment of  errors  cannot  be  availed  of  to  import  questions  into  a 
cause  which  the  record  does  not  show  were  raised  in  the  court 
below  and  rulings  asked  thereon.3 
§  27.  Assignments  held  good. 

It  is  ordinarily  sufficient  if  an  assignment  of  error  is  filed  in 
accordance  with  the  requirements  of  §  4,  Rule  21  of  the  U.  S. 
Supreme  Court.4 

An  assignment  of  error  stating  in  general  terms  that  the 
Court  erred  in  rendering  judgment  on  the  pleadings  was 
held  sufficient. s 

An  assignment  that  the  Court  erred  in  sustaining  demurrer 
held  sufficient.6 


1  Buckeye  Powder  Co.  v.  E.  I.  Dupont  Powder  Co.,  223  Fed.  881;  Bogk  v.  Gas- 
sert,  149  U.  S.  17,  37  L.  Ed.  631,  13  Sup.  Ct.  Rep.  738;  Moulor  v.  American  Life 
Ins.  Co.,  Ill  U.  S.  335, 28  L.  Ed.  447, 4  Sup.JCt.  Rep.  466;  Worthington  v.  Mason, 
101  U.  S.  149,  25  L.  Ed.  848;  Beaver  v.  Taylor,  93  U.  S.  46,  23  L.  Ed.  797; 
Harvey  v.  Tyler,  69  U.  S.,  2  Wall.  328,  17  L.  Ed.  871;  U.  S.  v.  Hammond,  226 
Fed.  849. 

2  Buckeye  Powder  Co.  v.  E.  I.  Dupont  Powder  Co.,  supra;  Randolph  v.  Allen, 
et  al.,  73  Fed.  23  (C.  C.  A.  5th  Cir.,  19  C.  C.  A.  353). 

3  Continental  Public  Works  v.  Stein  (C.  C.  A.  2d  Cir),  232  Fed.  559;  Ansbro  v. 
United  States,  159  U.  S.  695,  40  L.  Ed.  310,  16  Sup.  Ct.  Rep.  187;  Norris  v.  Jack- 
son, 9  Wall.  125,  19  L.  Ed.  608. 

-« Barnard  v.  Lea,  210  Fed.  583;  School  Dist.  of  Ackley  v.  Hall,  106  U.  S.  428, 
429,  1  Sup.  Ct.  Rep.  417,  27  L.  Ed.  237. 

s  Klink  v.  Chicago  R.  I.  &  P.  R.  Co.,  219  F.  457. 

6  Mitsui  v.  St.  Paul  F.  &  M.  Ins.  Co.,  202  Fed.  26;  Klink  v.  Chicago  R.  I.  & 
P.  R.  Co.,  219  Fed.  457. 

(318) 


Ch.  XV)  FEDERAL  APPELLATE  PROCEDURE  §§  28-31 

§  28.  Effect  of  plain  error. 

The  appellate  tribunal  may  notice  a  plain  unassigned  error 
appearing  on  the  record.1 

§  29.  Cross-assignments    of     error    not    permitted.      Cross- 
appeals. 

The  practice  prevailing  in  the  State  Courts  for  assignment  of 
cross-errors  on  the  same  record  is  not  available  in  the  Federal 
Courts. 2 

§  30.  Where  both  parties  appeal  to  the  Supreme  Court,  one 
record  sufficient. 

Sec.  1013  of  the  Rev.  Stat,  of  U.  S.  is  as  follows: 

"Where  appeal  is  duly  taken  by  both  parties  from  the  judgment  or  decree 
of  a  Circuit  or  District  Court  to  the  Supreme  Court,  a  transcript  of  the  record 
filed  in  the  Supreme  Court  by  either  appellant  may  be  used  on  both  appeals, 
and  both  shall  be  heard  thereon  in  the  same  manner  as  if  records  had  been 
filed  by  the  appellants  in  both  cases." 

§  31.  Bond— The  Statute. 

Every  justice  or  judge  signing  a  citation  on  any  writ  of  error, 
shall,  except  in  cases  brought  up  by  the  United  States  or  by  the 
direction  of  any  department  of  the  Government,  take  good  and 
sufficient  security  that  the  plaintiff  in  error  or  the  appellant  shall 
prosecute  his  writ  or  appeal  to  effect,  and,  if  he  fail  to  make  his 
plea  good,  shall  answer  all  damages  and  costs,  where  the  writ 
is  a  supersedeas  and  stays  execution,  or  all  costs  only  where  it  is 
not  a  supersedeas  as  aforesaid.3 

1  Mound  Coal  Co.  v.  Jeffrey  Mfg.  Co.  (C.  C.  A.  8th  Cir.),  233  Fed.  913;  Teal 
v.  Walker,  111  U.  S.  242,  28  L.  Ed.  415,  4  Sup.  Ct.  Rep.  420;  Lehnen  v.  Dickson, 
148  U.  S.  71,  37  L.  Ed.  373,  13  Sup.  Ct.  Rep.  481;  U.  S.  v.  Tennessee  &  C.  R.  Co., 
176  U.  S.  242,  20  Sup.  Ct.  Rep.  370,  44  L.  Ed.  452;  Central  Improvement  Co.  v. 
Cambria  Steel  Co.,  201  Fed.  811, 120  C.  C.  A.  121;  White  v.  United  States,  202  Fed. 
501,  121  C.  C.  A.  33. 

9  Daniels  v.  Portland  G.  M.  Co.,  et  al.,  202  Fed.  637;  ^Etna  Indemnity  Co.  v. 
J.  R.  Crowe  Mining  Co.,  154  Fed.  567,  83  C.  C.  A.  431;  Rogers  v.  Penobscot  Mining 
Co.,  154  Fed.  606,  83  C.  C.  A.  380. 

»  Section  100C  Rev.  Statuts. 

(219) 


Ch.  XV)  FEDERAL  APPELLATE  PROCEDURE  §§  32~34 

§  32.  In  criminal  cases. 

This  section  does  not  apply  in  criminal  cases  in  which  a  de- 
fendant may  sue  out  a  writ  of  error  without  security, x  but,  where 
a  judgment  for  costs  was  entered  against  the  defendants  in  a 
criminal  case,  he  cannot  obtain  a  writ  of  errqr  without  giving 
security  for  costs. 3 
§  33.  Filing  the  bond. 

While  a  bond  is  necessary  to  perfect  an  appeal  or  writ  of 
error,  it  is  not  jurisdictional,  and  may  be  waived  by  the 
parties. 3 

The  bond  may  be  filed  by  leave  in  the  appellate  tribunal. 4 
§  34.  Who  must  sign  bond. 

It  is  not  essential  that  all  appellants  should  sign  the  appeal 
bond. s 

And  the  stay  will  be  operative  only  as  against  those  who 
gave  the  bond.6 

Where  an  appeal  is  taken  only  from  part  of  a  judgment  and 
such  part  is  of  such  nature  that  it  does  not  affect  other  defendants, 
the  defendant  without  joining  the  other  defendants  may  prose- 
cute a  separate  appeal. 7 

x  Andrews  v.  U.  S.,  224  Fed.  418;  In  re  Claasen,  140  U.  S.  200,  11  Sup.  Ct.  Rep. 
735, 35  L.  Ed.  409.     The  United  States  is  not  required  to  give  bond.     R.  S.  §  1001. 

3  American  Surety  Co.  v.  U.  S.  239  Fed.  68  (C.  C.  A.  5th  Cir). 

s  Shepherd  v.  Pepper,  133  U.  S.  626,  33  L.  Ed.  706,  10  Sup.  Ct.  Rep.  438; 
Brown  v.  McConnell,  124  U.  S.  492,  31  L.  Ed.  495,  The  Bylands,  231  Fed.  101;  8 
Sup.  Ct.  Rep.  559;  Steward  v.  Masterson,  124  U.  S.  493,  8  Sup.  Ct.  Rep.  561,  31 
L.  Ed.  507;  Barnard  v.  Lea,  210  Fed.  589. 

4  Shepherd  v.  Pepper  133  U.  S.  626, 33  L.  Ed.  706,  10  Sup.  Ct.  Rep.  438;  Brown 
v.  McConnell,  124  U.  S.  492,  31  L.  Ed.  495,  8  Sup.  Ct.  Rep.  559;  Bigler  v.  Waller, 
12  Wall.  142,  20  L.  Ed.  260;  Davenport  v.  Fletcher,  16  How.  142,  14  L.  Ed.  879; 
Seymour  v.  Freer,  5  Wall.  822,  18  L.  Ed.  564;  Martin  v.  Hunter,  1  Wheat.  304, 
4  L.  Ed.  97. 

s Scruggs  v.  Memphis  &  C.  R.  R.  Co.,  104  U.  S.  26  L.  Ed.  741;  Brockett  v. 
Brockett,  2  How.  238,  11  L.  Ed.  251;  Illinois  Surety  Co.  v.  U.  S.,  226  Fed.  665. 

«Higbee  v.  Chadwick,  220  Fed.  873;  Ex  parte  French,  100  U.  S.  1,  25  L. 
Ed.  529. 

7  Alsop  v.  Conway,  188  Fed.  568;  Higbee  v.  Chadwick,  220  Fed.  873;  Orleans- 
Kenner  Elec.  Co.  v.  Dunbar,  218  Fed.  344. 

(220) 


Ch.  XV)  FEDERAL  APPELLATE   PROCEDURE  §§  35-38 

§  35.  Who  may  approve. 

The  judge  allowing  the  appeal  may  approve  the  bond  in 
chambers.1 

The  clerk  of  the  court  has  no  power  to  approve  the  bond, 
even  though  the  court  by  an  order  authorizes  him  so  to  do. 2 

While  a  clerk  cannot  approve  a  bond,  the  defect  may  be 
remedied  by  refiling  a  proper  bond  duly  approved  by  the  judge.3 

It  is  no  ground  for  dismissal  that  the  bond  is  defective  and 
the  Court  on  application  will  permit  the  filing  of  a  corrected  bond.4 
§  36.  To  whom  made. 

The  bond  must  run  to  the  name  of  the  opposite  party  or  the 
appeal  or  writ  of  error  will  be  dismissed.5 

Where  the  judgment  is  several,  each  defendant  may  file  his 
separate  bond. 6 
§  37.  Time  for  filing  bond. 

The  bond  must  be  filed  within  a  reasonable  time  or  the  writ 
of  error  will  be  dismissed.7 

When  no  appeal  bond  has  been  filed  for  four  years  from  the 
date  of  the  allowance  of   the  appeal,  it  will  be  dismissed  on 
motion. 8 
§  38.  Citation. 

(a)  The  Statute  provides: 

1  Gladden  v.  Garbert,  219  Fed.  855;  Hudgins  v.  Kemp,  18  How.  530, 15  L.  Ed.  511. 
3  Haskins  v.  St.  Louis,  etc.,  R.  R.  Co.,  109  U.  S.  106,  3  Sup.  Ct.  Rep.  72,  27  L. 
Ed.  873;  O'Reilly  v.  Edrington,  96  U.  S.  726,  24  L.  Ed.  659. 

3  Chicago  Dollar  Directory  Co.  v.  Chicago  Directory,  65  Fed.  463,  13  C.  C.  A. 
8;  Freeman  v.  U.  S.,  227  Fed.  732. 

4  Seward  v.  Comeau,  102  U.  S.  161,  26  L.  Ed.  86. 

s  The  Bylands,  231  Fed.  101;  Davenport  v.  Fletcher,  16  How.  142, 14  L.  Ed.  879; 
Bigler  v.  Waller,  12  Wall.  142,  20  L.  Ed.  260. 

6  Orleans-Kenner  Elec.  Co.  v.  Dunbar,  218  Fed.  344;  Ex  parte  French,  100 
U.  S.  1,  25  L.  Ed.  529. 

1  Rhame  v.  Southern  &  C.  Co.,  230  Fed.  403;  Beardsley  v.  Arkansas  &  Louisiana 
Ry.  Co.,  158  U.  S.  123,  39  L.  Ed.  919,  15  Sup.  Ct.  Rep.  786;  Corcoran  v.  Kos- 
trometinoff,  91  C.  C.  A.  619,  164  Fed.  685. 

»  Beardsley  v.  Arkansas  &  Louisiana  R.  R.  Co.,  158  U.  S.  123,  39  L.  Ed.  919, 
15  Sup.  Ct.  Rep.  786. 

(221) 


Ch.  XV)  FEDERAL  APPELLATE   PROCEDURE  §§  39-40 

"When  the  writ  is  issued  by  the  Supreme  Court  to  a  District  Court,  the  cita- 
tion shall  be  signed  by  a  judge  of  such  District  Court,  or  by  a  justice  of  the 
Supreme  Court,  and  the  adverse  party  shall  have  at  least  thirty  days'  notice; 
and  when  it  is  issued  by  the  Supreme  Court  to  a  State  Court,  the  citation  shall 
be  signed  by  the  chief  justice,  or  judge,  or  chancellor  of  such  court  rendering  the 
judgment  or  passing  the  decree  complained  of,  or  by  a  justice  of  the  Supreme 
Court  of  the  United  States,  and  the  adverse  party  shall  have  at  least  thirty 
days'  notice."     (Rev.  Stat.  U.  S.  Sec.  999.) 

Citation  can  only  be  issued  by  the  judge  who  allowed  the 
appeal  or  writ  of  error. x 

The  citation  must  be  signed  by  the  judge;  allowing  the  appeal  or 
writ  of  error  and  made  returnable  not  less  than  thirty  (30)  days. 

(b)  Section  5  of  Rule  8  of  the  Supreme  Court  of  the  United 
States  provides:  ' 

"All  appeals,  writs  of  error,  and  citations  must  be  made  returnable  not  ex- 
ceeding thirty  days  from  the  day  of  signing  the  citation,  whether  the  return 
day  fall  in  vacation  or  in  term  time,  and  be  served  before  the  return  day,  except 
in  writs  of  error  and  appeals  from  California,  Oregon,  Nevada,  Washington. 
New  Mexico,  Utah,  Arizona,  Montana,  Wyoming,  North  Dakota,  South  Dakota, 
Alaska,  Idaho,  Hawaii,  and  Porto  Rico,  when  the  time  shall  be  extended  to  sj&tjS 
days  and  from  the  Philippine  Islands  to  one  hundred  and  twenty  days." 

§  39.  Time  of  return  of  citation. 

Thirty  (30)  days  is  the  limit  for  making  return  of  the  citation 
in  most  circuits.     In  the  Fourth  Circuit  forty  (40)  days  is  allowed. 

A   citation  making  an   appeal  or  writ  of  error  returnable 
"within  thirty  days  from  the  date  hereof"  is  a  sufficient  com- 
pliance with  the  rule. 2 
§  40.  Appellate  Court  may  issue  citation. 

Where  a  citation  is  not  issued  in  the  first  instance,  the  Appel- 
late Court  at  its  discretion  may  make  an  order  for  the  issuance 
of  a  citation  later. 3 

insurance  Co.  v.  Mordecai,  21  How.  195,  16  L.  Ed.  94;  Browning  v.  Boswell, 
209  Fed.  778. 

2  Seaboard  Air-Line  R.  R.  Co.  v.  Horton,  233  U.  S.  492,  34  Sup.  Ct.  Rep.  635,  58 
L.  Ed.  1062. 

s  Dodge  v.  Knowles,  114  U.  S.  430, 5  Sup.  Ct.  1197, 29  L.  Ed.  144;  Knickerbocker 
Life  Ins.  Co.  v.  Pendleton,  115  U.  S.  339,  6  Sup.  Ct.  74,  29  L.  Ed.  432;  Jacobs  v. 

(222) 


Ch.  XV)  FEDERAL  APPELLATE  PROCEDURE  §§  41-45 

§  41.  When  lack  of  citation  is  not  jurisdictional. 

The  fact  that  the  citation  was  not  issued  until  after  thirty- 
days  after  the  allowance  of  the  appeal  or  writ  of  error  will  not 
oust  the  appellate  tribunal  of  jurisdiction,  provided  service  was 
obtained. z 
§  42.  Parties  to  citation. 

All  parties  to  the  suit  directly  interested  in  the  result  of  the 
appeal  must  be  cited. 2 
§  43.  When  citation  unnecessary. 

When  notice  of  appeal  is  given  and  the  appeal  is  allowed  in 
open  court,  the  issuance  of  a  citation  is  unnecessary.3 
§  44.  Necessary  if  bond  filed  after  term. 

But  this  rule  holds  good  only  if  the  appellant  has  perfected 
his  appeal  and  given  the  necessary  bond  during  the  term ;  if 
not  so  perfected,  a  citation  is  necessary.      Browning  v.  Boswell, 
supra.4 
§  45.  Necessary  if  appeal  taken  after  term. 

A  citation  is  imperative  if  the  appeal  is  allowed  after  term, 
although  it  may  have  been  allowed  upon  notice  in  open  court 
Browning  v.  Boswell,  supra. s 


George,  150  U.  S.  415,  14  Sup.  Ct.  159,  37  L.  Ed.  1127;  Walton  v.  Marietta  Chair 
Co.,  157  U.  S.  342,  15  Sup.  Ct.  626,  39  L.  Ed.  725;  Browning  v.  Boswell,  209  Fed. 
788. 

1  Berliner  Gramophone  Co.  v.  Seaman  (C.  C.  A.),  108  Fed.  714. 

a  Illinois  Trust  &  Savings  Bank  v.  Kilbourne,  22  C.  C.  A.  599,  76  Fed.  883;  New 
York  Assets  Realization  v.  McKinnon,  209  Fed.  791  (C.  C.  A.  2d  Cir.). 

3  Jacobs  v.  George,  150  U.  S.  416,  37  L.  Ed.  1127,  14  Sup.  Ct.  Rep.  159;  Dodge 
v.  Knowles,  114  U.  S.  430,  29  L.  Ed.  144,  5  Sup.  Ct.  Rep.  1197;  Richardson  v. 
Green,  130  U.  S.  114,  32  L.  Ed.  875,  9  Sup.  Ct.  Rep.  443;  Central  Trust  Co.  v. 
Continental  Trust  Co.,  86  Fed.  524,  30  C.  C.  A.  235;  Columbus  Chain  Co.  v.  Stand- 
ard Chain  Co.,  145  Fed.  186,  76  C.  C.  A.  164;  Browning  v.  Boswell,  209  Fed.  7S8. 

4  Brown  v.  McConnell,  124  U.  S.  491,  41  L.  Ed.  496,  8  Sup.  Ct.  Rep.  559; 
Hewitt  v.  Filbert,  116  U.  S.  143,  29  L.  Ed.  582,  6  Sup.  Ct.  Rep.  319;  Radford  v. 
Folsom,  123  U.  S.  727,  31  L.  Ed.  293,  8  Sup.  Ct.  Rep.  334;  Jacobs  v.  George,  150 
U.  S.  415,  37  L.  Ed.  1127,  14  Sup.  Ct,  Rep.  159. 

s  Jacobs  v.  George,  150  U.  S.  416,  37  L.  Ed.  1127,  14  Sup.  Ct.  Rep.  159;  Peace 
Phosphate  Co.  v.  Edwards,  70  Fed.  728. 

(223) 


Ch.  XV)  FEDERAL  APPELLATE   PROCEDURE  §§  4G-49 

§  46.  Imperative  on  writ  of  error. 

A  citation  is  always  required  where  the  mode  of  review  is  by- 
writ  of  error. T 

Notice  of  a  writ  of  error,  given  in  open  court,  at  the  same  term 
the  judgment  is  entered,  is  not  equivalent  to  the  citation  required 
by  Section  999  of  the  Rev.  Statutes  of  the  U.  S.     In  this  respect 
writs  of  error  differ  from  appeals  taken  in  open  court.2 
§  47.  Waiver  of  objection  to  insufficiency. 

The  point  of  insufficiency  of  the  citation  is  waived  by  accept- 
ance of  service  of  same.3 

By  filing  a  general  appearance  citation  is  waived.4 
§  48.  Service  on  attorney  sufficient. 

Service  of  citation  upon  the  attorney  for  the  defendant  in 
error  in  the  case  below  is  sufficient.3 

Service  of  the  citation  by  mailing  is  invalid.6 
§  49.  Supersedeas — Time  for  application — 60  days. 

(a)  The  Statute  provides : 

"  In  any  case  where  a  writ  of  error  may  be  a  supersedeas,  the  defendant  may 
obtain  such  supersedeas  by  serving  the  writ  of  error,  by  lodging  a  copy  thereof 
for  the  adverse  party  in  the  clerk's  office  where  the  record  remains,  within 
sixty  days,  Sundays  exclusive,  after  the  rendering  of  the  judgment  complained 
of,  and  giving  the  security  required  by  law  on  the  issuing  of  the  citation.  But 
if  he  desires  to  stay  process  on  the  judgment,  he  may,  having  served  his  writ  of 


1  U.  S.  v.  Phillips,  121  U.  S.  254,  7  Sup.  Ct.  Rep.  874,  30  L.  Ed.  914;  Kitchin  v. 
Randall,  93  U.  S.  86,  23  L.  Ed.  810;  Roberts  v.  Kendrick,  211  Fed.  970. 

2  U.  S.  v.  Phillips,  121  U.  S.  254,  7  Sup.  Ct.  Rep.  874,  30  L.  Ed.  914;  Kitchin  v. 
Randall,  93  U.  S.  86,  23  L.  Ed.  810;  Browning  v.  Boswell,  209  Fed.  788. 

s  Goodwin  v.  Fox,  120  U.  S.  775,  7  Sup.  Ct.  Rep.  779,  30  L.  Ed.  815;  Bigler  v. 
Wallace,  12  Wall.  142,  20  L.  Ed.  260;  Smith  v.  Currie,  230  Fed.  803. 

4  Villa  Bolas  v.  United  States,  6  How.  81,  12  L.  Ed.  352;  Tripp  v.  Santa  Rosa 
Street  Ry.  Co.,  144  U.  S.  126,  12  Sup.  Ct.  Rep.  655,  36  L.  Ed.  373;  Sage  v.  R.  R. 
Co.,  96  U.  S.  712,  24  L.  Ed.  641;  Richardson  v.  Green,  130  U.  S.  115,  9  Sup.  Ct. 
Rep.  443,  32  L.  Ed.  876;  Lowitz  v.  Kimmerle,  221  Fed.  857. 

s  Smith  v.  Currie,  230  Fed.  803;  Bigler  v.  Wallace,  12  Wall.  142,  20  L.  Ed.  260; 
United  States  v.  Curry,  6  How.  106,  12  L.  Ed.  363;  Bacon  v.  Hart,  1  Black  38, 
17  L.  Ed.  52. 

6  Tripp  v.  Santa  Rosa  Street  Ry.  Co.,  144  U.  S.  126,  12  Sup.  Ct.  Rep.  655,  36 
L.  Ed.  373. 

(224) 


Ch.  XV)  FEDERAL  APPELLATE   PROCEDURE  §§  50~52 

error  as  aforesaid,  give  the  security  required  by  law  within  sixty  days  after  the 
rendition  of  such  judgment,  or  afterward  with  the  permission  of  a  justice  or 
judge  of  the  appellate  court.  And  in  such  cases  where  a  writ  of  error  may  be 
a  supersedeas,  executions  shall  not  issue  until  the  expiration  of  ten  days."1 

(b)  Rule  29  of  the  Supreme  Court  of  the  United  States 
provides : 

"Supersedeas  bonds  in  the  district  courts  and  Circuit  Courts  of  Appeals 
must  be  taken,  with  good  and  sufficient  security,  that  the  plaintiff  in  error  or 
appellant  shall  prosecute  his  writ  or  appeal  to  effect,  and  answer  all  damages 
and  costs  if  he  fail  to  make  his  plea  good.  Such  indemnity,  where  the  judgment 
or  decree  is  for  the  recovery  of  money  not  otherwise  secured,  must  be  for  the 
whole  amount  of  the  judgment  or  decree,  including  just  damages  for  delay, 
and  costs  and  interest  on  the  appeal;  but  in  all  suits  where  the  property  in 
controversy  necessarily  follows  the  event  of  the  suit,  as  in  real  actions,  replevin, 
and  in  suits  on  mortgages,  or  where  the  property  is  in  the  custody  of  the  marshal 
under  admiralty  process,  as  in  case  of  capture  or  seizure,  or  where  the  proceeds 
thereof,  or  a  bond  for  the  value  thereof,  is  in  the  custody  or  control  of  the  court, 
indemnity  in  all  such  cases  is  only  required  in  an  amount  sufficient  to  secure 
the  sum  recovered  for  the  use  and  detention  of  the  property,  and  the  costs  of 
the  suit,  and  just  damages  for  delay,  and  costs  and  interest  on  the  appeal."3 

§  50.  Prerequisites  for  supersedeas. 

Before  an  Appellate  Court  may  issue  a  writ  of  supersedeas, 
it  must  appear  that  the  writ  of  error  and  citation  had  actually 
been  issued  and  served. 3 
§  51.  Lodgment  of  writ  of  error. 

The  allowance  of  the  writ  of  error  and  the  lodgment  of  the 
same  with  the  clerk  of  the  court  below,  together  with  a  copy  of 
same  for  the  adverse  party  within  sixty  days  from  the  date  of  judg- 
ment, are  essential  prerequisites  to  the  granting  of  a  supersedeas. 4 
§  52.  A  matter  of  right — function  of  court. 

Under  Section  1007  of  the  Rev.  Stat,  of  the  U.  S.,  a  super- 

1  R.  S.  §  1007,  as  amended  1875.     U.  S.  Comp.  Stat.  1901,  p.  714. 

2  Rule  XIII.  of  the  U.  S.  Circuit  Court  of  Appeals  for  the  2d  Circuit  is  identical 
with  above  Rule  29. 

s  Roberts  v.  Kendrick,  211  Fed.  970,  S.  C.  211  Fed.  1024;  Ex  parte  Ralston, 
119  U.  S.  615,  7  Sup.  Ct.  Rep.  317,  30  L.  Ed.  506;  Smith  v.  Currie,  230  Fed.  803. 

«  Title  Guarantee  &  Trust  Co.  v.  United  States,  222  U.  S.  401,  32  Sup.  Ct.  Rep. 
168,  56  L.  Ed.  248;  Railroad  Co.  v.  Harris,  7  Wall.  574,  19  L.  Ed.  100;  O'Dowd  v. 
Russell,  14  Wall.  402,  20  L.  Ed.  857. 

JS  (225) 


Ch.  XV)  FEDERAL  APPELLATE   PROCEDURE  §§  53~55 

sedeas  is  a  matter  of  right  and  the  duty  of  the  judge  is  limited 
in  passing  upon  the  amount  and  character  of  the  security.1 
§  53.  Requiring  better  security. 

The  court  has  power,  upon  application,  to  require  a  better 
bond  or  increase  the  amount  of  the  bond.2 
§  54.  Supersedeas  and  bail  in  criminal  cases. 

In  criminal  cases  a  defendant  is  entitled  to  a  supersedeas 
and  bail  as  a  matter  of  right.3  The  mere  lodgment  of  the  writ 
of  error  with  the  clerk  within  sixty  (GO)  days  operates  as  a 
supersedus. 4 

Where  such  wrrit  of  error  is  allowed  in  the  case  of  a  conviction 
of  an  infamous  crime,  or  in  any  other  criminal  case  in  which  it 
will  lie  under  Section  238,  the  District  Court,  or  any  judge  thereof, 
shall  have  power,  after  the  citation  is  served,  to  admit  the  ac- 
cused to  bail  in  such  amount  as  may  be  fixed. s 

In  capital  cases  the  writ  of  error  operates  as  a  supersedeas. 6 
§  55-  Stay  of  death  penalty — The  Statute. 

"That  hereafter  in  all  cases  of  conviction  of  crime  the  punishment  of  which 
provided  by  law  is  death,  tried  before  any  court  of  the  United  States,  the  final 
judgment  of  such  court  against  the  respondent  shall,  upon  the  application  of  the 
respondent,  be  reexamined,  reversed,  or  affirmed  by  the  Supreme  Court  of  the 
United  States  upon  a  writ  of  error,  under  such  rules  and  regulations  as  said 
court  may  prescribe.  Every  such  writ  of  error  shall  be  allowed  as  of  right  and 
without  the  requirement  of  any  security  for  the  prosecution  of  the  same  or  for 
costs.  Upon  the  allowance  of  every  such  writ  of  error,  it  shall  be  the  duty  of  the 
clerk  of  the  court  to  which  the  writ  of  error  shall  be  directed  to  forthwith  trans- 
mit to  the  clerk  of  the  Supreme  Court  of  the  United  States  a  certified  transcript 
of  the  record  in  such  case,  and  it  shall  be  the  duty  of  the  clerk  of  the  Supreme 


1  Randall  Co.  v.  Foglesong  M.  Co.,  200  Fed.  741;  McCourt  v.  Singer  Bigger,  150 
Fed.  102  (C.  C.  A.). 

3  Williams  v.  Claflin,  103  U.  S.  753,  26  L.  Ed.  606. 

sMcKnight  v.  U.  S.,  51  C.  C.  A.,  285;  In  re  Classens,  140  U.  S.  200,  35  L.  ed. 
409,  11  Sup.  Ct.  Rep.  735;  Hudson  v.  Parker,  supra. 

4  Gould  v.  U.  S.,  205  Fed.  883;  Hudson  v.  Parker,  156  U.  S.  277,  15  Sup.  Ct. 
Rep.  450,  39  L.  Ed.  424;  Hardesty  v.  United  States  (C.  C.  A.),  1S4  Fed.  2G9. 

s  Par.  2  of  Supreme  Court  Rule  36;  Sect.  2  of  Rule  3,  C.  C.  A.,  2  Cir. ;  Rule  34  as 
amended,  C.  C.  A.,  2  Cir. 

6  Paragraph  6,  Act  of  Feb.  6,  18S9,  25  St.  at  Large  656. 

(226) 


Ch.  XV)  FEDERAL  APPELLATE  PROCEDURE  §§  56~57 

Court  of  the  United  States  to  receive,  file,  and  docket  the  same.  Every  such 
writ  of  error  shall  during  its  pendency  operate  as  a  stay  of  proceedings  upon 
the  judgment  in  respect  of  which  it  is  sued  out.  Any  such  writ  of  error  may 
be  filed  and  docketed  in  said  Supreme  Court  at  any  time  in  a  term  held  prior 
to  the  term  named  in  the  citation  as  well  as  at  the  term  so  named ;  and  all  such 
writs  of  error  shall  be  advanced  to  a  speedy  hearing  on  motion  of  either  party. 
When  any  such  judgment  shall  be  either  reversed  or  affirmed  the  cause  shall  be 
remanded  to  the  court  from  whence  it  came  for  further  proceedings  in  accord- 
ance with  the  decision  of  the  Supreme  Court,  and  the  court  to  which  such  cause 
is  so  remanded  shall  have  power  to  cause  such  judgment  of  the  Supreme  Court 
to  be  carried  into  execution.  No  such  writ  of  error  shall  be  sued  out  or  granted 
unless  a  petition  therefor  shall  be  filed  with  the  clerk  of  the  court  in  which  the 
trial  shall  have  been  had  during  the  same  term  or  within  such  time,  not  exceed- 
ing sixty  days  next  after  the  expiration  of  the  term  of  the  court  at  which  the 
trial  shall  have  been  had,  as  the  court  may  for  cause  allow  by  order  entered  of 
record."     (Sect.  — ,  25  Stat.  L.  656.) 

Section  1040  of  the  Rev.  St.  of  U.  S.  also  provides: 

"Whenever  a  judgment  of  death  is  rendered  in  any  court  of  the  United  States 
and  the  case  is  carried  to  the  Supreme  Court  in  pursuance  of  law,  the  court 
rendering  such  judgment  shall,  by  its  order,  postpone  the  execution  thereof 
from  time  to  time  and  from  term  to  term,  until  the  mandate  of  the  Supreme 
Court  in  the  case  is  received  and  entered  upon  the  records  of  such  lower  court. 
In  case  of  affirmance  by  the  Supreme  Court,  the  court  rendering  the  original 
judgment  shall  appoint  a  day  for  the  execution  thereof ;  and  in  case  of  reversal, 
such  further  proceedings  shall  be  had  in  the  lower  court  as  the  Supreme  Court 
may  direct." 

§  56.  Time  for  filing. 

The  bond  for  supersedeas  may  be  filed  at  any  time  within 
sixty  days.  * 

§  57.  Effect  of  perfecting  appeal  or  writ  of  error.    Transfer  of 
jurisdiction. 

It  is  well  established  that  the  perfecting  of  an  appeal  or  writ 
of  error  transfers  the  cause  to  the  appellate  tribunal  where  it 
remains  until  it  is  remitted  to  the  trial  court  by  the  sending  down 
of  the  mandate.2 

1  In  re  Claasen,  140  U.  S.  200,  11  Sup.  Ct.  Rep.  735,  35  L.  Ed.  409;  Roberts  v. 
Kendrick,  211  Fed.  1024;  same  case,  211  Fed.  970. 

*  Credit  Co.  v.  Ry.  Co.,  128  U.  S.  253,  9  Sup.  Ct.  Rep.  107,  32  L.  Ed.  448; 
Omaha  Elec.  R.  Co.  v.  City  of  Omaha,  216  Fed.  850;  Aspen  Smelting  Co.  v.  Bil- 

(227) 


Ch.  XV)  FEDERAL   APPELLATE   PROCEDURE  §§  5S~60 

Jurisdiction  is  transferred  to  the  Supreme  Court  and  the  juris- 
diction of  the  lower  court  is  gone  the  moment  the  bond  is  filed 
and  approved.1 

As  soon  as  the  bond  is  approved  and  filed  the  jurisdiction  of 
the  trial  court  is  gone  and  the  jurisdiction  of  the  appellate  tribunal 
attaches.2 
§  58.  Proceedings  in  the  lower  court. 

While  the  cases  are  not  fully  in  accord  as  to  the  proper  pro- 
cedure to  be  followed  when  an  application  is  made  for  a  rehearing 
on  account  of  newly  discovered  evidence,  it  is  apparent  from  the 
decisions  that  if  a  decree  has  been  entered  in  the  lower  courts,  and 
an  appeal  has  been  taken  therefrom  to  the  Circuit  Court  of  Ap- 
peals, so  that  the  Appellate  Court  has  jurisdiction,  the  proper 
proceeding  is  for  the  petitioner  to  file  a  petition  duly  verified 
and  addressed  to  the  Appellate  Court,  and  praying  for  leave  to 
file  in  the  lower  court  a  supplemental  bill  in  the  nature  of  a  bill 
of  review. 3 
§  59.  A  matter  of  right. 

An  appeal  may  be  taken  or  writ  of  error  prosecuted  as  a 
matter  of  right.4 
§  60.  Setting  aside  appeal. 

The  party  obtaining  an  appeal  may  during  the  term  move 
to  set  aside  the  order  allowing  the  appeal.5 

lings,  150  U.  S.  31,  14  Sup.  Ct.  Rep.  4,  37  L.  Ed.  986;  Lockman  v.  Lang,  132  Fed. 
1,  65,  C.  C.  A.  621. 

1  Kendrick  v.  Roberts,  214  Fed.  268;  Keyser  v.  Fair,  105  U.  S.  265,  26  L.  Ed. 
1025. 

3  U.  S.  v.  Mayer,  235  U.  S.  55,  35  Sup.  Ct.  Rep.  16,  59  L.  Ed.  129;  McClellan  v. 
Carland,  217  U.  S.  268,  30  Sup.  Ct.  Rep.  501,  54  L.  Ed.  762;  Ex  parte  Equitable 
Trust  Co.,  231  Fed.  571,  C.  C.  A.  571. 

3  Sheeler  v.  Alexander,  211  Fed.  544;  In  re  Gamewell,  73  Fed.  908,  20  C.  C.  A. 
Ill ;  Wcstinghouse  Co.  v.  Stanley,  138  Fed.  823,  71  C.  C.  A.  189;  Bliss  v.  Rccd,  106 
Fed.  318,  45  C.  C.  A.  304;  Boston  Railway  Co.  v.  Bemis  Co.,  98  Fed.  121,  38  C.  C. 
A.  661. 

-» Randall  v.  Foglesong,  M.  Co.,  200  Fed.  741;  McCourt  v.  Singer  Bigger,  150 
Fed.  102,  80  C.  C.  A.  56;  United  States  v.  Curry,  6  How.  106,  12  L.  Ed.  363. 

s  Storey  v.  Storey,  221  Fed.  262;  Goddard  v.  Ordway,  101  U.  S.  745,  25  L.  Ed 

(228) 


Ch.  XV)  FEDERAL  APPELLATE   PROCEDURE  §§  G1-G2 

But  the  rule  does  not  apply  to  cases  where  the  order  sought 
to  be  amended  or  vacated  is  not  a  final  order  or  judgment.     An 
interlocutory  order  may  be  set  aside  at  any  time  before  the  close 
of  the  term  at  which  final  decree  is  entered.  r 
§  61.  Second  appeal — when  allowed. 

Second  appeal  may  be  taken  or  writ  of  error  sued  out  within 
statutory  time  if  dismissed  for  irregularity. 2 

So  if  the  record  is  not  filed  during  the  return  term,  the  writ 
expires.  The  plaintiff  in  error  may  have  a  second  writ  within  the 
time  limited  for  taking  an  appeal  or  error. 3 

Where  a  party  mistakes  his  remedy  and  sues  out  a  writ  of 
error  instead  of  an  appeal,  he  may  dismiss  his  writ  of  error  and 
procure  an  order  of  appeal,  provided  the  statutory  time  for  the 
appeal  has  not  elapsed.  On  such  appeal  the  Supreme  Court  on 
motion  duly  made  will  permit  the  refiling  of  the  original  transcript 
of  the  record  on  the  new  appeal. 4 
§  62.  Second  appeal  subsequent  to  mandate. 

A  second  appeal  from  a  judgment  or  decree  entered  after 
remandment  brings  up  for  review  only  the  proceedings  subsequent 
to  mandate.5 

A  District  Court  cannot  do  otherwise  than  carry  out  the 
mandate  from  the  Court  of  Appeals  or  Supreme  Court  and  cannot 

1040;  Cornue  v.  Ingersoll,  176  Fed.  194,  200;  Aspen  M.  &  S.  Co.  v.  Billings,  150 
U.  S.  31,  35,  14  Sup.  Ct.  Rep.  4,  37  L.  Ed.  986;  Nelson  v.  Meehan,  155  Fed.  1,  4. 

1  Storey  v.  Storey,  221  Fed.  232;  Southern  Pacific  Co.  v.  Kelley,  187  Fed.  937. 

1  Freeman  v.  U.  S.,  227  Fed.  731;  Yeaton  v.  Lennox,  8  Peters  123,  8  L.  Ed.  889; 
The  Virginia  v.  West,  19  How.  182,  15  L.  Ed.  594;  U.  S.  v.  Pacheco,  20  How.  261, 
15  L.  Ed.  820;  Edmonson  v.  Bloomshire,  7  Wall.  306,  19  L.  Ed.  91;  Deneale  v. 
Archer,  8  Peters  526,  8  L.  Ed.  1032. 

3  Evans  v.  Bank,  134  U.  S.  330,  331,  10  Sup.  Ct.  493,  33  L.  Ed.  917;  Edmonson 
v.  Bloomshire,  7  Wall.  306,  309,  19  L.  Ed.  91;  Aspen  Mining  Co.  v.  Billings,  150 
U.  S.  35,  14  Sup.  Ct.  4,  37  L.  Ed.  986;  Small  v.  Northern  Pacific  R.  R.  Co.,  134 
U.  S.  514,  515,  10  Sup.  Ct.  614,  33  L.  Ed.  1006;  Robertson  Banking  Co.  v.  Cham- 
berlain, 228  Fed.  500. 

4  Bernard  v.  Lea,  210  Fed.  583;  Williams  v.  Savings  Bank,  141  U.  S.  249, 11  Sup. 
Ct.  Rep.  1005,  35  L.  Ed.  740;  but  see  Act  of  Sept.  6,  1916,  Chap.  II.,  §  7. 

s  The  Steam  Dredge  A.,  229  Fed.  682;  Hinckley  v.  Norton,  103  U.  S.  764,  26  L. 
Ed.  458. 

(229) 


Ch.  XV)  FEDERAL   APPELLATE   PROCEDURE  §  03 

refuse  to  do  so  on  the  ground  of  want  of  jurisdiction  in  itself  or 
in  the  Appellate  Court.  ■ 

There  is  a  long  line  of  decisions  to  the  effect,  generally  speak- 
ing, that  when  a  case  in  equity  has  been  carried  to  an  appellate 
court,  followed  by  a  mandate  from  such  court  to  the  trial  court, 
the  trial  court  has  no  discretion  other  than  to  observe  and  in 
most  instances  literally  follow  the  terms  of  the  mandate  as  to 
further  proceedings. 2 

Where  decree  is  entered  in  pursuance  to  mandate,  an  appeal 
will  not  be  entertained  and  it  will  be  dismissed. 3 
§  63.  Special  procedure  in  admiralty — Taking  the  appeal. 

"An  appeal  to  the  Circuit  Court  of  Appeals  shall  be  taken  by  filing  in  the 
office  of  the  clerk  of  the  District  Court  and  serving  on  the  proctor  of  the  adverse 
party,  a  notice,  signed  by  the  appellant  or  his  proctor,  that  the  party  appeals 
to  the  Circuit  Court  of  Appeals  from  the  decree  complained  of.  The  appeal 
shall  be  heard  on  the  pleadings  and  evidence  in  the  District  Court,  unless  the 
Appellate  Court,  on  motion,  otherwise  order.  "4 

Admiralty  cases  are  taken  by  appeal  only.5 
The  appeal  may  be  limited  to  specific  points. 
The  third  admiralty  rule  of  the  U.  S.  Court  of  Appeals  is  as 
follows : 

"  The  appellant  may  also,  at  this  option,  state  in  his  notice  of  appeal  that  he 
desires  only  to  review  one  or  more  questions  involved  in  the  cause,  which  ques- 
tions must  be  clearly  and  succinctly  stated;  and  he  shall  be  concluded  in  this 
behalf  by  such  notice,  and  the  review  upon  such  an  appeal  shall  be  limited  to 
such  question  or  questions." 

In  many  particulars  the  practice  generally  prevailing  in  the 


1  Brown  v.  Alton  Water  Co.,  222  U.  S.  325,  32  Sup.  Ct.  Rep.  156,  56  L.  Ed.  221. 

2  In  re  Potts,  166  U.  S.  263,  17  Sup.  Ct.  520,  41  L.  Ed.  994;  In  re  Sanford  Fork 
&  Tool  Co.,  160  U.  S.  247, 16  Sup.  Ct.  291,  49  L.  Ed.  414;  Gaines  v.  Rugg,  148  U.  S. 
228,  13  Sup.  Ct.  611,  37  L.  Ed.  432;  St.  Louis  &  S.  R.  R.  Co.  v.  Barker,  210  Fed.  902. 

3  Brown  v.  Alton  Water  Co.,  222  U.  S.  325,  32  Sup.  Ct.  Rep.  156,  56  L.  Ed.  221; 
Humphrey  v.  Baker,  103  U.  S.  736,  26  L.  Ed.  456. 

4  Rule  1  in  admiralty,  C.  C.  A.,  2nd  Circuit. 

s  The  Lady  Pike,  21  Wall.  1, 22  L.  Ed.  499;  The  Protector,  11  Wall  82,  20  L.  Ed. 
47. 

(230) 


Ch.  XV)  FEDERAL   APPELLATE   PROCEDURE  §  64 

U.  S.  Court  of  Appeals  is  also  applicable  in  admiralty  cases.    By 
an  express  rule  it  is  ordained : 

"  The  following  of  the  general  rules  of  this  court,  and  no  others,  shall  be  deemed 
admiralty  rules,  viz:  Rules  3,  4,  5,  6,  7,  9,  11,  12;  Section  4  of  Rule  14;  rules  15, 
16,  17,  18,  19,  20,  21,  22;  amended  Rule  23;  Section  5  of  Rule  24;  Rules  25,  26, 
27,  23,  29;  Section  4  of  Rule  30;  Rules  31,  32,  34,  and  36. 

"In  all  matters  in  civil  causes  of  admiralty  and  maritime  jurisdiction,  not 
expressly  provided  for  by  the  foregoing  rules  of  this  court,  the  rules  of  practice 
of  the  District  Court  of  the  district  in  which  the  cause  was  decided  being  in 
force  at  the  time,  not  being  inconsistent  with  these  rules,  will  be  adopted  so 
far  as  may  seem  proper." 

§  64.  Supersedeas  in  admiralty. 

If  the  appellant  desires  to  stay  the  execution  of  the  decree 
of  the  court  below,  the  bond  which  he  shall  give  shall  be  a  bond 
with  sufficient  surety  in  such  further  sum  as  the  judge  of  the 
District  Court  or  a  judge  of  this  court  shall  order,  conditioned 
that  he  will  abide  by  and  perform  whatever  decree  may  be  ren- 
dered by  this  court  in  the  cause,  or  on  the  mandate  of  this  court 
by  the  court  below. z 

The  appellant  shall,  on  filing  either  of  such  bonds,  give  notice 
of  such  filing,  and  of  the  names  and  residence  of  the  sureties,  and 
if  the  appellee  within  two  days,  excepts  to  the  sureties,  they  shall 
justify,  on  notice,  within  two  days  after  such  exception. 3 

A  writ  of  inhibition  may  be  awarded  by  this  court  on  motion 
of  the  appellant,  to  stay  proceedings  in  the  court  below,  when 
circumstances  require. 

1  §  2  Admiralty  Rule  II.,  2d  Circuit. 

8  3d  section,  Admiralty  Rule  II.,  2d  Circuit,  adopted  October  5,  1892. 


(231) 


Ch.  XVI)  FEDERAL   APPELLATE   PROCEDURE  §§  1^3 

CHAPTER  XVI 

Federal  Appellate  Procedure 

II.    The  Record 

Sec.  Sec. 

1.  What  is  a  record — Definition.  10.  Praecipe    for    record     to     be    filed 

2.  Record  cannot  be  impeached.  — Notice — Ten  days  to  designate 

3.  Duplications  in  record  not  permitted.  portions  of  record. 

4.  "Common  Law  Record" — What  it  11.  Practice  same  in  U.   S.   Courts  of 

consists  of.  Appeal. 

5.  Papers  in   the  record — How  incor-      12.  Record  must  at  least  contain  com- 

porated  and  certified.  mon  law  requisites. 

6.  Opinions  of  the  court  are  part  of  the      13.  Parties  may  agree  what  record  should 

record.  contain. 

7.  The    record — How    made    and    re-      14.  Time  for  return — 30  days — Exten- 

turned — The  Statute.  sion. 

8.  Diligence  required  of  plaintiff  in  error.      15.  Record  must  be  complete.     Refer- 

9.  The  Rules  of  Court.  ence  to  other  record  not  permitted. 

§  i.  What  is  a  record — Definition. 

A  record  is  substantially  a  written  history  of  the  proceedings 
from  the  beginning  to  the  end  of  the  case,  but  nothing  which  is  not 
properly  matter  of  record  can  be  made  such  by  inserting  therein. x 
§  2.  Record  cannot  be  impeached. 

A  record  imports  absolute  verity.    Affidavits  cannot  contra- 
dict the  recital  of  the  record.    Affidavits  must  be  incorporated 
in  the  bill  of  exceptions. 2 
§  3.  Duplications  in  record  not  permitted. 

The  Federal  reviewing  courts  have  frequently  condemned  the 
practice  of  duplicating  papers  in  the  record  and,  while  it  is  not 

1  Eldorado  Coal  &  Mining  Co.  v.  Mariotti,  215  Fed.  51;  U.  S.  v.  Taylor,  147 
U.  S.  G95, 13  Sup.  Ct.  Rep.  479,  37  L.  Ed.  335. 

3  Johnson  v.  The  United  States,  225  U.  S.  411,  56  L.  Ed.  1144,  32  Sup.  Ct.  Rep. 
750;  Stewart  v.  Wyoming  Co.,  128  XJ.  S.  383,  9  Sup.  Ct.  Rep.  101,  32  L.  Ed.  439; 
Evans  v.  Stettinson,  149  U.  S.  605,  13  Sup.  Ct.  Rep.  931,  37  L.  Ed.  866;  Baltimore 
&  Potomac  R.  R.  Co.  v.  Trustees,  91  U.  S.  127,  23  L.  Ed.  260. 

(232) 


Ch.  XVI)  FEDERAL   APPELLATE   PROCEDURE  §§  4-6 

easy  in  all  cases  to  prescribe  what  the  record  shall  contain  or 
what  shall  be  excluded,  the  rules  and  decisions  of  the  court 
governing  the  matter  of  preparation  of  record  offer  appropriate 
guide  in  cases  at  law  or  in  equity. x 
§  4.  "  Common  law  record  " — What  it  consists  of. 

The  declaration,  bill,  answer,  and  other  pleadings,  together 
with  the  judgment  or  decree  and  all  orders  entered  in  the  case 
constitute  what  is  considered  as  the  record. 2 
§  5.  Papers  in  the  record — How  incorporated  and  certified. 

In  cases  at  common  law  the  course  of  the  appellate  tribunal 
has  been  uniform  not  to  consider  any  paper  as  a  part  of  the  record 
which  is  not  made  so  by  the  pleadings  or  by  some  opinion  of  the 
court  referring  to  it.  This  rule  is  common  to  all  courts  exercising 
appellate  jurisdiction  according  to  the  course  of  common  law. 
The  appellate  court  cannot  know  what  evidence  was  given  to  the 
jury,  unless  it  is  spread  on  the  record  in  a  proper  legal  manner. 
The  unauthorized  certificate  of  the  clerk  that  any  document  was 
read,  or  any  evidence  given  to  the  jury,  cannot  make  that  docu- 
ment or  that  evidence  a  part  of  the  record,  so  as  to  bring  it  to  the 
cognizance  of  the  court.3 
§  6.  Opinions  of  the  court  are  part  of  the  record. 

The  early  rule  that  opinions  of  the  court  are  not  part  of  the 
record  is  no  longer  in  force.    The  rule  requires  that  opinions  of 

*  Manhattan  L.  I.  Co.  v.  Cohen,  234  U.  S.  124,  34  Sup.  Ct.  Rep.  874,  58  L.  Ed. 
1245;  Union  Pacific  R.  R.  Co.  v.  Stewart,  95  U.  S.  279,  285,  24  L.  Ed.  431;  Ball 
Fastener  Co.  v.  Kreutzer,  150  U.  S.  118,  14  Sup.  Ct.  Rep.  48,  37  L.  Ed.  1021;  Red- 
field  v.  Parks,  130  U.  S.  625,  9  Sup.  Ct.  Rep.  642,  32  L.  Ed.  1054;  Nashua  R.  Cor- 
poration v.  .Boston  R.  Corporation,  61  Fed.  244,  21  U.  S.  App.  50;  U.  S.  Sugar 
Refining  Co.  v.  Providence,  52  Fed.  382,  18  U.  S.  Appeals,  603. 

3  Eldorado  C.  &  M.  Co.  v.  Mariotti,  215  Fed.  51 ;  Whiting,  et  al.,  the  Bank  of  the 
United  States,  13  Peters  6,  10  L.  Ed.  33;  see  also§  6  et  seq.  of  this  chapter.  For 
further  parts  of  the  record  see  "Bill  of  Exceptions, "  Chapter  XVII.,  and  Record  in 
Equity,  Chapter  XVIII. 

3  Eldorado  C.  &  M.  Co.  v.  Mariotti,  215  Fed.  51;  Fisher  v.  Cockrell,  5  Pet.  254, 
8  L.  Ed.  114;  Lessee  of  Reed  v.  Marsh,  13  Peters  153,  10  L.  Ed.  103;  Kanouse  v. 
Martin,  15  How.  210,  14  L.  Ed.  665;  Baltimore  and  P.  R.  R.  Co.  v.  Church  Trus- 
tees, 91  U.  S.  127,  23  L.  Ed.  127. 

(233) 


Ch.  XVI)  FEDERAL   APPELLATE   PROCEDURE  §§  7~9 

lower  courts  shall  be  transmitted  and  the  reviewing  court  may 
look  to  the  opinion  to  ascertain  the  true  meaning  of  a  finding. * 
§  7.  The  record  on  writ  of  error — How  made  and  returned — 
The  statute. 

"There  shall  be  annexed  to  and  returned  with  any  writ  of  error  for  the  renewal  ot 
a  cause  at  the  day  and  place  therein  mentioned  an  authenticated  transcript  of  the 
record,  an  assignment  of  errors,  and  a  prayer  for  reversal,  with  a  citation  to  the 
adverse  party."3 

§  8.  Diligence  required  of  plaintiff  in  error. 

A  party  securing  a  writ  of  error  must  use  diligence  in  perfecting 
it,  but  where  he  has  done  all  in  his  power  to  perfect  his  writ  and 
the  judge  allowing  the  same  has  done  all  that  was  necessary  for 
him  to  do,  the  writ  will  not  be  dismissed  for  the  failure  of  the 
clerk  to  discharge  his  duty  in  that  connection.3 
§  9.  The  Rules  of  Court. 

Rule  8  of  the  U.  S.  Supreme  Court  is  as  follows: 

"The  clerk  of  the  court  to  which  any  writ  of  error  may  be  directed  shall 
make  return  of  the  same,  by  transmitting' a  true  copy  of  the  record,  and  of  the 
assignment  of  errors,  and  of  all  proceedings  in  the  case,  under  his  hand  and  the 
seal  of  the  court." 

Rule  XIV.  of  the  U.  S.  Circuit  Court  of  Appeals  for  the 
Second  Circuit  is  identical  with  this  rule,  except  that  the  rule 
makes  specific  mention  requiring  that  the  bill  of  exceptions  shall 

1  Reinman  v.  City  of  Little  Rock,  237  U.  S.  179,  35  Sup.  Ct.  Rep.  511,  59  L.  Ed. 
900;  Philadelphia  Fire  Association  v.  New  York,  119  U.  S.  116,  7  Sup.  Ct.  Rep.  108, 
30  L.  Ed.  342;  Krieger  v.  Shelby  R.  R.  Co.,  125  U.  S.  43,  8  Sup.  Ct.  Rep.  752, 31  L. 
Ed.  675;  Adams  Co.  v.  Burlington  R.  R.  Co.,  112  U.  S.  129,  5  Sup.  Ct.  Rep.  77,28 
L.  Ed.  678;  Egan  v.  Hart,  165  U.  S.  190,  17  Sup.  Ct.  Rep.  300,  41  L.  Ed.  680;  St. 
Romes  v.  Cotton  Press  Co.,  127  U.  S.  614,  8  Sup.  Ct.  Rep.  1335,  32  L.  Ed.  289; 
Last  Chance  Mining  Co.  v.  Tyler  Mining  Co.,  157  U.  S.  684,  15  Sup.  Ct.  Rep.  733, 
39  L.  Ed.  859;  Stratton  v.  Park  Commission,  145  Fed.  436;  National  Foundry  v. 
Water  Co.,  183  U.  S.  216,  22  Sup.  Ct.  Rep.  Ill,  46  L.  Ed.  157;  Gross  v.  U.  S. 
Mortgage  Co.,  108  U.  S.  477,  2  Sup.  Ct.  Rep.  940,  27  L.  Ed.  793. 

a  Rev.  St.  of  U.  S.  Sect.  997. 

J  Robertson  Banking  Co.  v.  Chamberlain,  228  Fed.  500;  Mutual  Life  Insurance 
Co.  v.  Phinney,  178  U.  S.  335, 20  Sup.  Ct.  Rep.  906,  44  L.  Ed.  1092. 

(234) 


Ch.  XVI)  FEDERAL   APPELLATE   PROCEDURE  §§  10-12 

be  included  in  the  record.  While  the  rule  of  the  Supreme  Court 
makes  no  mention  of  it,  nevertheless,  it  is  essential  that  the  bill 
of  exceptions  be  included  in  the  record. 

§  10.  Praecipe  for  record  to  be  filed— Notice — Ten  days  to  desig- 
nate portions  of  record. 
Rule  8  of  the  Supreme  Court  of  the  United  States  provides : 

"In  order  to  enable  the  clerk  to  perform  such  duty  and  for  the  purpose  of 
reducing  the  size  of  transcripts  of  record  in  cases  brought  to  this  court  by  appeal 
or  writ  of  error,  by  eliminating  all  papers  not  necessary  to  the  consideration  of 
the  questions  to  be  reviewed,  it  shall  be  the  duty  of  the  appellant  or  plaintiff  in 
error  or  his  attorney  to  file  with  the  clerk  of  the  lower  court,  together  with  proof 
or  acknowledgment  of  service  of  a  copy  on  the  appellee  or  defendant  in  error,  or 
his  counsel,  a  praecipe  which  shall  indicate  the  portions  of  the  record  to  be 
incorporated  into  the  transcript  of  the  record  on  such  appeal  or  writ  of  error. 
Should  the  appellee  or  defendant  in  error,  or  his  counsel,  desire  additional 
portions  of  the  record  incorporated  into  the  transcript  of  the  record  to  be  filed 
in  this  court,  he  shall  file  with  the  clerk  of  the  lower  court  his  praecipe  also, 
within  ten  days  thereafter  (unless  the  time  shall  be  enlarged  by  a  judge  of  the 
lower  court  or  by  a  justice  of  this  court),  indicating  such  additional  portions  of  the 
record  desired  by  him. 

"  The  clerk  of  the  lower  court  shall  transmit  to  this  court  as  the  transcript  of 
the  record  in  the  case  only  the  portions  of  the  record  below  designated  by  both 
parties  as  above  provided. " 

§  ii.  Practice  same  in  U.  S.  Courts  of  Appeal. 

In  the  majority  of  the  Circuit  Courts  of  Appeal,  the  same 
practice  prevails  as  in  the  Supreme  Court  of  the  United  States.1 
§  12.  Record  must  at  least  contain  common  law  requisites. 

At  any  rate  not  less  than  the  whole  common  law  record  should 
be  sent  up. 2 

Immaterial  matter  should  not  be  incorporated  into  the 
record.3 

*  Burnham  v.  N.  Chicago  St.  R.  R.  Co.,  87  Fed.  R.  168, 170, 30  C.  C.  A.  594;  In  re 
Robertshaw  Mfg.  Co.  135  Fed.  220;  Record  Sect.  750  of  the  Rev.  St.;  Goodwin  v. 
U.  S.,  200  Fed.  121. 

3  Eldorado  C.  &  M.  Co.  v.  Mariotti,  215  Fed.  51;  Martina  &  Lowell  Ry.  Co.  v. 
Boston  &  Lowell  Ry.  Co.,  61  Fed.  237,  245,  9  C.  C.  A.  468.  See  §  4  of  this  Chapter 
as  to  what  constitutes  a  common  law  record. 

3  Eldorado  C.  &  M.  Co.  v.  Mariotti,  215  Fed.  51;  Cunningham  v.  German  Ins. 
Bank,  103  Fed.  932, 43  C.  C.  A.  377. 

(235) 


Ch.  XVI)  FEDERAL   APPELLATE   PROCEDURE  §§  13-15 

§  13.  Parties  may  agree  what  record  should  contain. 

Rule  8  further  provides: 

"The  parties  or  their  counsel,  however,  may  agree  by  written 
stipulation  to  be  filed  with  the  clerk  of  the  lower  court  the  por- 
tions of  the  record  which  shall  constitute  the  transcript  of  record 
on  appeal  or  writ  of  error,  and  the  clerk  in  such  case  shall  trans- 
mit only  the  papers  designated  in  such  stipulation." 
§  14.  Time  for  return — 30  days — Extension. 

Thirty  (30)  days  for  return  of  record  unless  time  extended. 

Rule  8  of  the  Supreme  Court  of  the  United  States  provides 
that  the  clerk  of  the  court  to  which  any  writ  of  error  may  be 
directed  shall  make  return  of  the  same,  by  transmitting  a  true 
copy  of  the  record  and  of  the  assignment  of  errors,  and  of  all  pro- 
ceedings in  the  case,  under  his  hand  and  the  seal  of  the  court, 
within  thirty  days  from  the  day  of  signing  the  citation  whether 
the  return  day  fall  in  vacation  or  in  term  time  and  be  served 
before  the  return  day. x 

§  15.  Record  must  be  complete.    Reference  to  other  record  not 
permitted. 

Section  3  of  Rule  8  of  the  Supreme  Court  of  the  United  States 
provides : 

' '  No  case  will  be  heard  until  a  complete  record,  containing  in 
itself,  and  not  by  reference,  all  the  papers,  exhibits,  depositions, 
and  other  proceedings,  which  are  necessary  to  the  hearing  in  this 
court  shall  be  filed. 2 

1  U.  S.  v.  U.  S.  Steel  Corp.,  240  U.  S.  442,  36  Sup.  Ct.  Rep.  408,  60  L.  Ed.  1110, 
In  the  case  of  Meyers,  et  al.,  v.  United  States,  218  Fed.  372,  where  the  bill  of  excep- 
tions had  been  settled  and  the  record  printed  and  the  parties  stipulated  in  writing 
that  the  record  so  printed  need  not  be  certified  but  might  be  corrected  by  either 
party  by  comparing  the  same  with  the  bill  of  exceptions,  it  was  held  unreason- 
able for  the  defendant  in  error,  the  United  States,  without  suggesting  any  corrections, 
to  refuse  to  stipulate  that  it  was  correct,  which  would  necessitate  an  authentication 
of  the  record  by  the  clerk  at  considerable  expense  to  the  plaintiff  in  error,  and  there- 
fore the  court  extended  the  time  for  filing  the  record  by  plaintiff  in  error  until  the 
government  did  so  stipulate. 

2  Identical  with  Rule  14  of  the  U.  S.  Court  of  Appeals,  Second  Circuit. 

(236) 


Ch.  XVII) 


THE  BILL  OF  EXCEPTIONS 


§1 


CHAPTER  XVII 


The  Bill  of  Exceptions 


Sec. 

1.  What  is  a  bill  of  exceptions. 

2.  When    a    bill    of    exceptions    un- 

necessary for  review. 

3.  Warning    of    the    consequences  of 

defective  bill. 

4.  Warning  of  the  Supreme  Court. 

5.  Form. 

6.  The  purpose  of  the  bill  of  exception. 

7.  What  the  bill  must  contain. 

8.  Must  point  out  errors  of  law. 

9.  Bill  must  present  substantial  con- 

troversy. 

10.  Evidence — How  preserved  and  ex- 

ceptions saved. 

11.  When  the  entire  evidence  necessary. 

12.  Exceptions  to  charge. 

13.  Documents — How  identified. 

14.  Objecting  to  evidence  because  com- 

plaint  does   not   state   cause   of 
action. 

15.  Excqptions  to  charge  must  be  taken 

before  jury  retire. 

16.  Must  obtain  ruling  from  trial  court. 


Sec, 
17. 
18. 
19. 

20. 
21. 

22. 
23. 

24. 
25. 
26. 


27. 

28. 
29. 

30. 
31. 
32. 


State  Court  practice  not  followed. 
By  whom  signed  and  settled. 
Time  for  signing  and  settling  a  bill 

of  exceptions. 
One  or  several  bills. 
Of  no  avail  unless  exceptions  taken 

at  the  trial. 
Rule  in  New  York. 
Adjournments     during      term      for 

settling  bill  of  exceptions. 
Extension  of  time  by  consent. 
Reservation  by  order  or  consent. 
Trial  before  the  Court  in  Com- 
mon Law  Cases.  Special  findings. 

The  Statute. 
Decisions  construing.     Request  for 

findings. 
Effect  of  findings. 
Must    be    preserved    by    bill     of 

exceptions. 
When  bill  of  exceptions  unnecessary. 
Inferences  in  absence  of  findings. 
Agreed  statement  of  facts. 


§  i.  What  is  a  bill  of  exceptions. 

A  bill  of  exceptions  is  in  the  nature  of  a  pleading,  and  its  office 
is  to  make  matters  of  record  which  do  not  and  cannot  appear  in 
the  common  law  record  made  by  the  clerk  of  the  court.  Thus 
when  the  erroneous  ruling  does  not  appear  on  the  face  of  the 
record  or  on  demurrer,  a  bill  of  exceptions  is  the  only  method  by 
which  a  judgment  in  a  common  law  action  will  be  reviewed  in  a 
national  appellate  tribunal. * 

1  Montana  R.  R.  Co.  v.  Warren,  137  U.  S.  350,  11  Sup.  Ct.  Rep.  96,  34  L.  Ed. 
682;  Origet  v.  U,  S.,  125  U.  S.  240,  8  Sup.  Ct.  Rep.  846,  31  L.  Ed.  743;  Graham  v. 

(237) 


Ch.  XVII)  THE   BILL   OF    EXCEPTIONS  §§  2~4 

Motions  made  dehors  the  record  must  be  preserved  by  a  bill  of 
exceptions.  * 
§  2.  When  a  bill  of  exceptions  unnecessary  for  review. 

Error  apparent  on  the  face  of  the  record  or  in  the  pleadings  or 
judgment  may  be  reviewed  without  a  bill  of  exceptions. 2 
§  3.  Warning  of  the  consequences  of  defective  bill. 

In  a  recent  case3  the  Court  of  Appeals  for  the  4th  Circuit  said: 

"  While  it  is  not  the  policy  of  the  court  to  dismiss  writs  of  error  and  cases  on 
appeal  on  account  of  slight  technicalities,  at  the  same  time  the  rules  of  this  court 
are  plain  and  easily  understood.  In  this  instance  the  provision  of  the  statute 
relating  to  the  question  at  issue  is  mandatory  and  must  be  enforced.  It  is 
incumbent  upon  attorneys  who  practice  in  the  federal  courts  to  observe  and 
strictly  follow  the  rules  of  practice  and  procedure  in  preparing  and  presenting 
bills  of  exceptions.  ..." 

§  4.  Warning  of  the  Supreme  Court. 

In  the  case  of  Michigan  Ins.  Bank  v.  Eldred,  143  U.  S.  298 


Bayne,  18  How.  60, 15  L.  Ed.  265;  Prentice  v.  Stearns,  113  U.  S.  435, 5  Sup.  Ct.  Rep. 
547,  28  L.  Ed.  1059;  Prentice  v.  Zane,  8  How.  470,  12  L.  Ed.  1160;  Sparrow  v. 
Strong,  4  Wall.  5S4,  18  L.  Ed.  410;  Kerr  v.  Clampett,  95  U.  S.  190,  24  L.  Ed.  494; 
Head  v.  Hargrave,  105  U.  S.  47,  26  L.  Ed.  1029;  McFarlan  Carriage  Co.  v.  Solanas, 
45  C.  C.  A.  262,  106  Fed.  145. 

1  Eldorado  Coal  &  M.  Co.  v.  Mariotti,  215  Fed.  51, 131  C.  C.  A.  359. 

a  Nalle  v.  Oyster,  230  U.  S.  105,  33  Sup.  Ct.  Rep.  1043,  57  L.  Ed.  1439;  Denver 
v.  Home  Sav.  Bank,  236  U.  S.  101,  35  Sup.  Ct.  Rep.  265,  59  L.  Ed.  485;  Clune  v. 
United  States,  159  U.  S.  590,  16  Sup.  Ct.  Rep.  125,  40  L.Ed.  269;  Bram  v.  United 
States,  168  U.  S.  571,  18  Sup.  Ct.  Rep.  183, 42  L.  Ed.  583;  Moline  Plow  Co.  v.  Webb, 
141  U.  S.  625,  12  Sup.  Ct.  Rep.  100,  35  L.  Ed.  881;  Ghost  v.  U.  S.,  94  C.  C.  A.  253, 
168  Fed.  841 ;  Ex  parte  Chateaugay  Ore  &  Iron  Co.,  128  U.  S.  544,  9  Sup.  Ct.  Rep.  150, 
32  L.  Ed.  508;  Clinton  v.  Missouri  Pac.  R.  R.  Co.,  122  U.  S.  469,  7  Sup.  Ct.  Rep. 
1268,  30  L.  Ed.  1214;  Manning  v.  German  Ins.  Co.,  46  C.  C.  A.  144,  107  Fed.  52; 
Baltimore  &  Pac.  R.  R.  Co.  v.  Sixth  Presb.  Church,  91  U.  S.  127,  23  L.  Ed.  200; 
Wilmington  v.  Ricaud,  90  Fed.  214,  32  C.  C.  A.  579;  Francisco  v.  Chicago  &  A.  R. 
Co.,  79  C.  C.  A.  292,  149  Fed.  354;  Young  v.  Martin,  75  U.  S.  354,  8  Wall.  354,  19 
'  L.  Ed.  418;  Aurora  v.  West,  7  Wall.  82,  19  L.  Ed.  42;  Suydam  v.  Williamson,  20  How. 
427, 15  L.  Ed.  978;  Bennett  v.  Butterworth,  52  U.  S.  669, 11  How.  669,  13  L.  Ed.  859. 

3  Mound  Coal  Co.  v.  Jeffrey  Mfg.  Co.,  233  Fed.  914  (C.  C.  A.);  Oxford  &  Coast 
Line  R.  R.  Co.  v.  Union  Bank,  153  Fed.  723,  82  C.  C.  A.  609;  Michigan  Ins.  Bank  v. 
Eldred,  143  U.  S.  298, 12  Sup.  Ct.  Rep.  450,  36  L.  Ed.  162. 

(23S) 


Ch.  XVII)  THE   BILL   OF    EXCEPTIONS  §§  5~7 

(12  Sup.  Ct.  450,  36  L.  Ed.  1C2),  the  court,  among  other  things 
said: 

"The  duty  of  seasonably  drawing  up  and  tendering  a  bill  of  exceptions,  stating 
distinctly  the  rulings  complained  of  and  the  exceptions  taken  to  them,  belongs 
to  the  excepting  party,  and  not  to  the  court.  The  trial  court  has  only  to  consider 
whether  the  bill  tendered  by  the  party  is  in  due  time,  in  legal  form,  and  conform- 
able to  the  truth;  and  the  duty  of  the  court  of  error  is  limited  to  determining  the 
validity  of  exceptions  duly  tendered  and  allowed.  It  is  essential  to  the  orderly 
procedure  of  the  courts  that  attorneys  should  comply  with  the  rules  relating  to  the 
same;  otherwise,  it  would  be  useless  to  promulgate  rules  for  the  guidance  of  those  who 
may  seek  to  review  the  action  of  the  lower  court.  .  .  ."* 

§  5.  Form. 

Where  a  bill  of  exception  is  not  reduced  in  narrative  form  as 
provided  by  the  rule  the  court  may  strike  the  bill  of  exception  or 
tax  the  cost  against  the  appealing  party. 2 
§  6.  The  purpose  of  exception. 

The  sole  purpose  of  a  bill  of  exceptions  ana  assignment  of  errors 
is  to  bring  separately  and  clearly  the  matters  complained  of  (1) 
before  the  trial  judge  so  that  he  may  have  the  opportunity  to 
grant  relief  if  he  thinks  proper,  (2)  before  counsel  for  defendant 
in  error,  so  that  he  may  be  advised  of  the  precise  points  to  be  met 
in  argument,  and  (3)  before  the  appellate  court,  so  that  it  may 
readily  perceive  the  points  to  be  decided  and  the  portions  of  the 
record  on  which  they  depend.  Repetition  not  necessary  to  these 
ends  should  not  incumber  the  record. 3 
§  7.  What  the  bill  must  contain. 

A  bill  of  exceptions  ought  to  be  upon  some  point  of  law,  either 
in  admitting  or  denying  evidence,  or  a  challenge  on  some  matter  of 
law  arising  on  facts  not  denied,  in  which  either  party  is  overruled 
by  the  court.  It  should  contain  only  the  rulings  of  the  court 
upon  matters  of  law,  with  so  much  of  the  testimony  as  may  be 

xCity  of  Harper,  Kans.  v.  Daniels,  211  Fed.  57;  Copper  River  &  N.  W.  Ry.  v. 
Reede,  211  Fed.  280. 

3  Mound  Coal  Co.  v.  Jeffrey  Mfg.  Co.,  233  Fed.  956  (C.  C.  A.  4th  Cir.);  Ches- 
borough  v.  Woodworth,  195  Fed.  875  (C.  C.  A.  6th  Cir.). 

Norfolk  &  W.  Ry.  Co.  v.  Holbrook,  215  Fed.  688  (C.  C.  A.). 

(230) 


Ch.  XVII)  THE  BILL  OF   EXCEPTIONS  §§  8-11 

necessary  to  explain  the  bearing  of  the  rulings  upon  the  issues 

involved. l 

§  8.  Must  point  out  errors  of  law. 

Every  bill  of  exceptions  should  point  out  distinctly  the  errors 
of  which  complaint  is  made.  It  ought  also  to  show  the  grounds 
relied  upon  to  sustain  the  objection  presented,  so  that  it  may 
appear  that  the  court  below  was  informed  as  to  the  point  to  be 
decided. 2 
§  9.  Bill  must  present  substantial  controversy. 

Each  bill  of  exception  must  be  considered  as  presenting  a 
substantial  case,  and  it  is  the  evidence  stated  in  it  alone  on  which 
the  court  will  decide.3 
§  10.  Evidence — How  preserved  and  exceptions  saved. 

Sect.  2,  Rule  4,  of  the  U.  S.  Supreme  Court  provides: 

"Only  so  much  of  the  evidence  shall  be  embraced  in  a  bill  of  exceptions  as 
may  be  necessary  to  present  clearly  the  questions  of  law  involved  in  the  rulings 
to  which  exceptions  are  reserved,  and  such  evidence  as  is  embraced  therein 
shall  be  set  forth  in  condensed  and  narrative  form,  save  as  a  proper  understanding 
of  the  questions  presented  may  require  that  parts  of  it  be  set  forth  otherwise. " 

The  evidence  must  be  brought  up  by  a  bill  of  exceptions. 4 
§  ii.  When  the  entire  evidence  necessary. 

Where  the  claim  is  that  there  was  not  sufficient  evidence  to 
submit  to  the  jury,  the  whole  evidence  should  be  transmitted  to 
the  appellate  court. 

'Mound  Coal  Co.  v.  Jeffrey  Mfg.  Co.,  233  Fed.  913;  Scaife  v.  Western  North 
Carolina  Land  Co.,  87  Fed.  310,  30  C.  C.  A.  661 ;  Duncan  v.  The  Francis  Wright,  105 
U.  S.  381,  20  L.  Ed.  1100;  Improvement  Co.  v.  Frari,  8  U.  S.  App.  444,  7  C.  C.  A. 
149,  58  Fed.  171 ;  Ex  parte  Crane  5  Pet.  190,  8  L.  Ed.  92. 

*  Mound  Coal  Co.  v.  Jeffrey  Mfg.  Co.,  233  Fed.  913;  Scaife  v.  Western  North 
Carolina  Land  Co.,  87  Fed.  310,  30  C.  C.  A.  661;  Duncan  v.  The  Francis  Wright,  105 
U.  S.  381,  26  L.  Ed.  1100. 

J  Mound  Coal  Co.  v.  Jeffrey  Mfg.  Co.,  233  Fed.  913;  Scaife  v.  Western  North 
Carolina  Land  Co.,  87  Fed.  310,  30  C.  C.  A.  661;  Jones  v.  Buckell,  104  U.  S.  554, 
26  L.  Ed.  841. 

<  The  E.  A.  Packer  v.  New  Jersey  Co.,  140  U.  S.  360,  11  Sup.  Ct.  Rep.  794,  35 
L.  Ed.  453;  Pearsons  v.  Bedford,  3  Pet.  433,  7  L.  Ed.  732;  Suydam  v.  Williamson,  20 
How.,  427,  15  L.  Ed.  978;  The  Fullerton,  211  Fed.  833. 

(240) 


Cll.  XVII)  THE  BILL   OF   EXCEPTIONS  §§  12-14 

While  it  is  the  better  practice  to  insert  in  the  bill  of  exception 
an  affirmative  statement  to  the  effect  that  it  contains  all  the 
evidence  offered  at  the  trial,  it  is  sufficient  where  this  fact  can 
be  gathered  by  inference. x 
§  12.  Exceptions  to  charge. 

Sect.  1,  Rule  4,  of  the  Supreme  Court  of  the  U.  S.  provides: 

"  No  bill  of  exceptions  shall  be  allowed  which  shall  contain  the  charge  of  the 
court  at  large  to  the  jury  in  trials  at  common  law,  upon  any  general  exception 
to  the  whole  of  such  charge.  But  the  party  excepting  shall  be  required  to  state 
distinctly  the  several  matters  of  law  in  such  charge  to  which  he  excepts;  and 
those  matters  of  law,  and  those  only,  shall  be  inserted  in  the  bill  of  exceptions 
and  allowed  by  the  court. " 

Rule  X.  of  the  U.  S.  Circuit  Court  of  Appeals  for  the  2d 
Circuit  is  materially  different  and  is  as  follows : 

"The  judges  of  the  circuit  and  district  courts  shall  not  allow  any  bill  of  excep- 
tions unless  the  same  contain  the  whole  charge  of  the  court  to  the  jury.  No 
general  exception  to  the  whole  of  such  charge  shall  be  allowed,  but  the  party 
excepting  shall  be  required  to  state  distinctly  the  several  matters  of  law  in  such 
charge  to  which  he  excepts. " 

§  13.  Documents — How  identified. 

All  documents  should  be  incorporated  in  the  bill  of  exceptions 
or  annexed  to  it,  properly  identified. 2 

§  14.  Objecting  to  evidence  because  complaint  does  not  state 
cause  of  action. 

The  practice  of  objecting  to  the  introduction  of  evidence  on 
the  ground  that  the  complaint  or  declaration  does  not  state  a 
cause  of  action  does  not  prevail  in  the  national  courts  and  is 
regarded  as  very  objectionable.    The  fact  that  it  may  be  permitted 

1  Clyatt  v.  U.  S.,  197  U.  S.  207,  25  Sup.  Ct.  Rep.  429,  49  L.  Ed.  726;  Crowe  v. 
Trickey,  204  U.  S.  228,  27  Sup.  Ct.  Rep.  275,  51  L.  Ed.  454;  Crowe  v.  Harmon, 
204  U.  S.  241,  27  Sup.  Ct.  Rep.  280,  51  L.  Ed.  461;  Gunnison  Co.  v.  Rollins,  173 
U.  S.  255,  19  Sup.  Ct.  Rep.  390,  43  L.  Ed.  689. 

3  Whitaker  v.  U.  S.,  220  Fed.  714;  Copper  River  &  N.  W.  Ry.  Co.  v.  Reede,  211 
Fed.  280;  Herbert  v.  Butler,  97  U.-S.  319,  24  L.  Ed.  958;  Hanna  v.  Mass.,  122 
U.  S.  26,  7  Sup.  Ct.  Rep.  1035,  30  L.  Ed.  1118;  Leftwich  v.  Lecann,  4  Wall.  187, 18  L. 
Ed.  388. 

x6  (241) 


Ch.  XVII)  THE  BILL   OF   EXCEPTIONS  §§  15-16 

in  the  courts  of  the  State  where   this   cause   was   pending   is 
immaterial.1 

Nor  does  it  apply  even  in  criminal  cases  where  technical  rules 
of  practice  are  much  more  strictly  observed  than  in  civil  cases. 2 
§  15.  Exceptions  to  charge  must  be  taken  before  jury  retire. 

It  must  appear  from  the  bill  of  exceptions  not  only  that  the 
instructions  were  given  or  refused  at  the  trial,  but  also  that  the 
party  who  complains  of  them  excepted  to  them  while  the  jury 
were  at  the  Bar  or  they  will  be  unavailing.3 

Otherwise,  the  appellate  tribunal  will  not  as  a  rule  consider  it.4 

A  paper  in  the  record  styled  "Exceptions  to  the  charge  to 
jury,"  initialed  "J.  B.  McP.  Trial  Judge"  and  signed  by  the 
plaintiff  is  not  a  bill  of  exceptions.5 

A  party  excepting  to  a  charge  must  specify  the  precise  portion 
of  the  charge  that  he  excepts  to.    A  general  exception  to  the  whole 
charge  is  insufficient,  if  any  part  of  it  is  good.6 
§16.  Must  obtain  ruling  from  trial  court. 

A  party  must  make  every  reasonable  effort  to  secure  from  the 
trial  court  correct  rulings,  or  such,  at  least,  as  are  satisfactory  to 
him  before  he  will  be  permitted  to  ask  any  review  by  the  appellate 

'Fisher  Mach.  Co.  v.  Dougherty,  231  Fed.  316  (C.  C.  A.),  8th  Cir.;  Bell  v.  R. 
R.  Co.,  4  Wall.  598,  18  L.  Ed.  338;  Oregon  R.  R.  Navigation  Co.  v.  Dumas,  181 
Fed.  181,  104  C.  C.  A.  641;  Boatmen's  Bank  v.  Trower  Bros.  Co.,  181  Fed.  804, 
807, 104  C.  C.  A.  314. 

'Morris  v.  United  States,  161  Fed.  672,  678,  88  C.  C.  A.  532;  United  States 
Portland  Cement  Co.  v.  Harvey,  216  Fed.  316  (C.  C.  A.  8th  Cir.). 

3  Fisher  Mach.  Co.  v.  Dougherty,  231  Fed.  910  (C.  C.  A.) ;  Arizona  &  New  Mexico 
Ry.  Co.  v.  Clark,  207  Fed.  817;  Western  Union  Teleg.  Co.  v.  Baker,  85  Fed.  690; 
Starr  Co.  v.  Madden,  188  Fed.  910;  Manhattan  Canning  Co.  v.  Wilson,  217  Fed.  41; 
Bridwell  v.  George  B.  Douglas,  183  Fed.  93. 

4  Fisher  Mach.  Co.  v.  Dougherty,  231  Fed.  910  (C.  C.  A.);  Balson  Cooper  Co.  v. 
Pedin,  217  Fed.  43  (C.  C.  A.  9th  Cir.);  Arizona  &  N.  M.  Ry.  Co.  v.  Clark,  207  Fed. 
817, 125  C.  C.  A.  305;  Western  Union  Teleg.  Co.  v.  Baker,  85  Fed.  690, 29  C.  C.  A. 
392;  Starr  v.  Madden,  188  Fed.  910,  110  C.  C.  A.  652;  Phelps  v.  Mayer,  15  How. 
161,  14  L.  Ed.  643;  Phelps  v.  Mayer,  211  Fed.  113. 

s  U.  S.  ex  rel.  Kinney  v.  U.  S.  Fidelity  &  Guaranty  Co.,  222  U.  S.  283,  32  Sup. 
Ct.  Rep.  101,  56  L.  Ed.  200;  Origet  v.  U.  S.  125  U.  S.  243,  8  Sup.  Ct.  Rep.  846,  31 
L.  Ed.  745.  6  Southern  Pac.  Co.  v.  Stewart  (C.  C.  A.),  233  Fed.  956. 

(242) 


Ch.  XVII)  THE  BILL  OF   EXCEPTIONS  §§  17-19 

tribunal;  and  to  that  end  he  must  be  distinct  and  specific  in  his 
objections  and  exceptions.     Rule  4  of  the  court  provides: 

"The  party  excepting  shall  be  required  to  state  distinctively  the  several 
matters  of  law  in  such  charge  to  which  he  excepts ;  and  those  matters  of  law,  and 
those  only  shall  be  inserted  in  the  bill  of  exceptions  and  allowed  by  the  court."1 

§  17.  State  Court  practice  not  followed. 

The  practice  prevailing  in  the  State  courts  in  common  law 
actions  has  no  application  in  the  matter  of  settlement  and  pre- 
paration of  bills  of  exception,  which  is  governed  solely  by  Federal 
rules. 2 
§  18.  By  whom  signed  and  settled. 

A  bill  of  exceptions  must  be  signed  by  the  trial  judge. 3 

In  case  of  the  death  or  incapacity  of  the  trial  judge,  any  judge 
may  settle  it  in  pursuance  to  Section  953  U.  S.  Comp.  St.  1901. 4 
§  19.  Time  for  signing  and  settling  a  bill  of  exceptions. 

The  bills  of  exceptions  must  be  prepared  and  settled  during 
order,  made  by  the  judge  during  the  term,  extending  the  time 
beyond  the  term,  or  full  consent  of  parties,  express  or  implied 
from  stringent  circumstances.5 

1  Philadelphia  Casualty  Co.  v.  Fechheimer,  220  Fed.  401;  Allis  v.  United  States, 
155  U.  S.  117,  15  Sup.  Ct.  Rep.  36,  39  L.  Ed.  91;  Block  v.  Darling,  140  U.  S.  234, 
238,  11  Sup.  Ct.  Rep.  832, 35  L.  Ed.  475 ;  Beaver  v.  Taylor,  93  U.  S.  46, 23  L.  Ed.  797. 

2  McBride  v.  Neal,  214  Fed.  266;  Fuller  v.  U.  S.,  182  U.  S.  562,  21  Sup.  Ct.  Rep. 
871,  45  L.  Ed.  1230;  Bronson  v.  Schulter,  104  U.  S.  410,  26  L.  Ed.  797;  Fleitas  v. 
Richardson,  147  U.  S.  538,  13  Sup.  Ct.  Rep.  429,  37  L.  Ed.  272;  Manning  v.  German 
Ins.  Co.,  107  Fed.  52,  46  C.  C.  A.  144;  Van  Stone  v.  Stilwell  &  B.  Mfg.  Co.,  142  U.  S. 
128,  12  Sup.  Ct.  Rep.  181,  35  L.  Ed.  961;  Fishburn  v.  Chicago  M.  &  St.  P.  R.  Co., 
137  U.  S.  60, 11  Sup.  Ct.  Rep.  8,  34  L.  Ed.  585;  Missouri  Pac.  R.  Co.  v.  Chicago  & 
Alton  R.  R.  Co.,  132  U.  S.  191, 10  Sup.  Ct.  Rep.  65,  33  L.  Ed.  309;  Re  Chateaugay 
Ore  &  Iron  Co.,  128  U.  S.  544, 9  Sup.  Ct.  Rep.  150,  32  L.  Ed.  508. 

s  Duluth  St.  Ry.  Co.  v.  Spears,  204  Fed.  573, 123  C.  C.  A.  99;  Mound  Coal  Co.  v. 
Jeffrey  Mfg.  Co.,  233  Fed.  913  Chicago  G.  W.  R.  Co.  v.  Lehigh,  233,  Fed.  384. 

4  Guardian  Ass.  Co.  v.  Quintona,  227  U.  S.  100, 108,  33  Sup.  Ct.  Rep.  236,  57  L. 
Ed.  437. 

s  Robertson  v.  Cockrell,  209  Fed.  843,  C.  C.  A.;  Mound  Coal  Co.  v.  Jeffrey  Mfg. 
Co.,  233  Fed.  913;  Morse  v.  Anderson,  150  U.  S.  156,  14  Sup.  Ct.  Rep.  43,  37  L.  Ed. 
1037;  United  States  v.  Jones,  149  U.  S.  263,  13  Sup.  Ct.  Rep.  840,  37  L.  Ed.  726; 
Hume  v.  Bowie,  148  U.  S.  245, 13  Sup.  Ct.  Rep.  582, 37  L.  Ed.  438;  Glaspell  v.  North- 

(243) 


Ch.  XVII)  THE  BILL  OF   EXCEPTIONS  §§  20-22 

§  20.  One  or  several  bills. 

It  is  well  settled  that,  instead  of  preparing  separate  bills  for 
each  separate  matter,  all  the  alleged  errors  of  a  trial  may  be 
incorporated  into  one  bill  of  exceptions. x 
§21.  Of  no  avail  unless  exceptions  taken  at  the  trial. 

An  exception  must  show  that  it  was  taken  and  reserved  at  the 
trial,  and  this  must  appear  affirmatively  on  the  record.  But  it 
may  be  drawn  out  in  form,  and  signed  or  sealed  afterwards  by  the 
judge. 2 

When  a  bill  of  exceptions  is  signed  during  the  trial,  purporting 
to  contain  a  recital  of  what  transpired  during  the  trial,  it  will  be 
assumed  that  all  things  therein  stated  took  place  at  the  trial, 
unless  from  its  language  the  contrary  is  disclosed.3 

No  bill  of  exceptions  can  be  allowed  by  the  court  below,  nor 
entertained  by  the  appellate  court,  unless  it  appears  from  the 
record  that  an  exception  was  taken  to  the  ruling  of  the  court 
below. 4 
§  22.  Rule  in  New  York. 

But  it  has  been  held  that  in  the  Southern  District  of  New  York 


em  Pacific,  144  U.  S.  211,  12  Sup.  Ct.  Rep.  593,  36  L.  Ed.  409;  Michigan  Insurance 
Bank  v.  Eldred,  143  U.  S.  293,  12  Sup.  Ct.  Rep.  450,  36  L.  Ed.  162;  Jones  v. 
Grover  &  Baker  Sewing  Machine  Co.,  131  U.  S.,  Appendix  cl,  24  L.  Ed.  925;  Scaife 
v.  Western  North  Carolina  Land  Co.,  87  Fed.  310,  30  C.  C.  A.  661 ;  Muller  v.  Ehlers, 
91  U.  S.  251,  23  L.  Ed.  319;  U.  S.  v.  Breitling,  20  How.  253,  15  L.  Ed.  900;  U.  S.  v. 
Jones,  149  U.  S.  262,  13  Sup.  Ct.  840,  37  L.  Ed.  726;  Railroad  Co.  v.  McGee,  8  U.  S., 
App.  86, 2  C.  C.  A.  81,  50  Fed.  906;  Lumber  Co.  v.  Chapman,  20  C.  C.  A.  503,  74  Fed. 
444. 

1  Norfolk  &  W.  Ry.  Co.  v.  Holbrook,  215  Fed.  [687;  Lees  v.  United  States,  150 
U.  S.  482, 14  Sup.  Ct.  Rep.  163,  37  L.  Ed.  1150. 

a  Mound  Coal  Co.  v.  Jeffrey  Mfg.  Co.,  233  Fed.  913;  Scaife  v.  Western  North 
Carolina  Land  Co.,  87  Fed.  310,  30  C.  C.  A.  661;  U.  S.  v.  Carey,  110  U.  S.  51,  3  Sup. 
Ct.  424,  28  L.  Ed.  67. 

3  Heard  v.  U.  S.,  228  Fed.  503;  N.  O.  &  N.  E.  R.  R.  v.  Jones,  142  U.  S.  18,  23, 12 
Sup.  Ct.  Rep.  109,  35  L.  Ed.  919. 

-» Mound  Coal  Co.  v.  Jeffrey  Mfg.  Co.,  233  Fed.  913;  Prioleau  v.  United  States, 
143  Fed.  320,  74  C.  C.  A.  458;  Gila  Valley  G.  &  N.  R.  R.  v.  Hall,  232  U.  S.  94, 
34  Sup.  Ct.  Rep.  229,  58  L.  Ed.  521;  Magruder  v.  Drury,  235  U.  S.  106,  35  Sup.  Ct. 
77,  59  L.  Ed.  151. 

(244) 


Ch.  XVII)  THE  BILL   OF   EXCEPTIONS  §§  23~26 

a  bill  of  exceptions  must  be  signed  within  the  time  limited  by  the 
rules  or  order  of  the  court,  although  the  term  has  not  expired.  * 
§  23.  Adjournments  during  term  for  settling  bill  of  exceptions. 

During  the  term  the  court  has  power  to  continue  the  cause 
for  the  purpose  of  settling,  allowing,  signing,  and  filing  the  bill 
of  exceptions.2 
§  24.  Extension  of  time  by  consent. 

By  consent  of  parties  given  during  the  term  the  court  may  sign 
a  bill  of  exceptions  after  the  term.3 
§  25.  Reservation  by  order  or  consent. 

Unless,  during  the  trial  term,  authority  has  been  reserved  or 
consent  given  by  the  parties,  the  court  cannot  after  term  allow  a 
bill  of  exceptions  then  first  presented,  to  alter  or  amend  a  bill  of 
exceptions  previously  signed.4 

§  26.  TRIAL  BEFORE  THE  COURT  IN  COMMON  LAW  CASES.      Special 

findings— The  Statute. 

Sec.  700  of  the  Rev.  Statutes  of  the  U.  S.  provides: 

"When  an  issue  of  fact  in  any  civil  cause  in  a  circuit  court  is  tried  and  deter- 
mined by  the  court  without  the  intervention  of  a  jury,  according  to  section  six 
hundred  and  forty-nine,  the  rulings  of  the  court  in  the  progress  of  the  trial  of  the 
cause,  if  excepted  to  at  the  time,  and  duly  presented  by  a  bill  of  exceptions,  may  be 
reviewed  by  the  Supreme  Court  upon  a  writ  of  error  or  upon  appeal;  and  when 
finding  is  special  the  review  may  extend  to  the  determination  of  the  sufficiency  of  the 
facts  found  to  support  the  judgment." 

The  statute  abolishing  the  Circuit  Court  of  U.  S.  has  extended 
the  operation  of  the  above  provision  to  the  U.  S.  District  Court. 

1  McBride  v.  Neal,  214  Fed.  966;  In  re  Chateaugay  Ore  &  Iron  Co.,  128  U.  S.  544, 
9  Sup.  Ct.  Rep.  150,  32  L.  Ed.  508. 

2  Freeman  v.  U.  S.,  227  Fed.  740;  Ward  v.  Cochran,  150  U.  S.  597,  610,  14  Sup. 
Ct.  Rep.  230,  37  L.  Ed.  1195. 

3  Freeman  v.  U.  S.,  supra;  Waldron  v.  Waldron,  156  U.  S.  378,  15  Sup.  Ct.  Rep. 
383,  39  L.  Ed.  457,  and  cases  cited. 

4  Freeman  v.  U.  S.,  supra;  The  Bayonne,  159  U.  S.  693,  16  Sup.  Ct.  Rep.  185,  40 
L.  Ed.  306;  Waldron  v.  Waldron,  156  U.  S.  378,  15  Sup.  Ct.  Rep.  383,  39  L.  Ed.  457; 
United  States  v.  Jones,  149  U.  S.  263,  13  Sup.  Ct.  Rep.  840, 37  L.  Ed.  726;  Michigan 
Ins.  Bank  v.  Eldred,  143  U.  S.  293,  12  Sup.  Ct.  Rep.  450,  36  L.  Ed.  162;  Honey  v. 
Chicago  B.  &  Q.  R.  R.  Co.,  82  Fed.  774,  27  CCA.  264;  Talbott  v.  Press  Pub.  Co., 
80  Fed.  568. 

(245) 


Ch.  XVII)  THE  BILL  OF   EXCEPTIONS  §§  27-31 

§  27.  Decisions  construing.    Request  for  findings. 

In  order  to  obtain  a  review  of  a  judgment  of  a  Federal  Court 
sitting  as  a  jury,  it  is  imperative  that  a  request  for  findings 
of  fact  be  made  or  that  objections  be  made  in  some  form 
to  the  evidence,  because  a  mere  general  finding  will  not  be 
reviewed.  ■ 
§  28.  Effect  of  findings. 

Findings  of  fact  made  by  the  court  have  the  same  effect  as  a 
verdict  of  a  jury  and  are  binding  on  the  appellate  tribunal  and 
cannot  be  reviewed  on  a  writ  of  error. 2 
§  29.  Must  be  preserved  by  bill  of  exceptions. 

And  the  rulings  and  proceedings  of  the  trial  judge  must  be 
preserved  by  a  bill  of  exceptions.3 
§  30.  When  bill  of  exceptions  unnecessary. 

When  the  court  makes  findings  of  fact,  a  bill  of  exceptions  is 
unnecessary  to  test  the  sufficiency  of  the  facts  found  to  support 
the  judgment  as  a  matter  of  law.4 

And  no  exception  to  the  finding  is  necessary. s 

No  exception  to  ruling  on  demurrers  or  any  other  pleading. 6 
§  31.  Inferences  in  absence  of  findings. 

In  the  absence  of  findings  by  the  trial  court,  inferences  of 
facts  to  establish   ultimate  facts  cannot  be  drawn  by  an  ap- 


1  Hosier  v.  Ireland,  219  Fed.  489  (C.  C.  A.). 

*  U.  S.  v.  U.  S.  Fidelity  Co.,  236  U.  S.  512, 35  Sup.  Ct.  Rep.  298,  59  L.  Ed.  696; 
Dooley  v.  Pease,  180  U.  S.  126,  21  Sup.  Ct.  Rep.  308,  45  L.  Ed.  457;  Stanley  v. 
Schwalbey,  162  IT.  S.  255,  40  L.  Ed.  960,  16  Sup.  Ct.  Rep.  754;  Louisville  v.  Halli- 
day,  154  U.  S.  657;  Runkle  v.  Burnham,  153  U.  S.  216, 14  Sup.  Ct.  Rep.  837,  38  L. 
Ed.  694. 

sFruth  v.  Bennaso,  219  Fed.  547.  And  see  "Reversible  Errors — Trial  by  the 
Court, "  Chapter  IV.,  §  38. 

*  Dunsmuir  v.  Scott,  217  Fed.  200;  Streeter  v.  Chicago  Sanitary  District,  133 
Fed.  131,  66  CCA.  197. 

s  Philadelphia  Casualty  Co.  v.  Fechheimer,  220  Fed.  401  (C  C.  A.);  Guaranty 
Trust  Co.  of  New  York  v.  New  York,  Koehler,  195  Fed.  669. 

6  Denver  v.  Holmes  Savings  Bank,  236  U.  S.  101,  35  Sup.  Ct.  Rep.  265,  59  L. 
Ed.  485;  Nalle  v.  lames  Foyster  et  al.,  230  U.  S.  165,  33  Sup.  Ct.  Rep.  1043,  57  L. 
Ed.  1439;  Snowden  v.  Canal  Co.,  238  Fed.  495  (C  C  A.,  8th  Cir.). 

(246) 


Ch.  XVII)  THE  BILL  OF   EXCEPTIONS  §  32 

pellate  court  from  the  testimony  which  may  be  found  in  the 

record.1 

§  32.  Agreed  statement  of  facts. 

But  the  agreed  statement  of  facts,  so  far  as  it  sets  forth  ulti- 
mate facts  as  distinguished  from  evidentiary  facts,  may  be  con- 
sidered as  taking  the  place  of  special  findings.3 

1  Norris  v.  Jackson,  9  Wall.  125, 19  L.  Ed.  608;  W.  L.  Perkins  Co.  v.  Von  Baum- 
bach,  1S5  Fed.  265,  107  C.  C.  A.  371;  Streeter  v.  Sanitary  District  of  Chicago,  133 
Fed.  124,  66  C.  C.  A.  190;  Anglo-American  Land  M.  &  A.  Co.  v.  Lombard,  132  Fed. 
721,  68  C.  C.  A  89;  Connor  et  al.  v.  U.  S.,  214  Fed.  522. 

a  Wilson  v.  Merchants'  Loan  &  Trust  Co.,  183  U.  S.  121, 22  Sup.  Ct.  55, 46  L.  Ed 
113;  New  York  Life  Ins.  Co.  v.  Dunlevy,  214  Fed.  1. 


(247) 


Ch.  XVIII)  THE   RECORD   IN   EQUITY  §  1 

CHAPTER  XVIII 
The  Record  in  Equity 

Sec.  Sec. 

1.  Admonition  to  the  Bar  to  prepare       7.  Opinions  of  the  courts  of  the  State 

their  records  carefully.  of  New  York. 

2.  Taxing    costs    against    attorneys —       8.  The  rule  generally. 

when.  9.  Record — Who  must  print. 

3.  Record   on   appeal  in  equity — Ab-      10.  Translations. 

stracting     testimony.       Praecipe.  11.  Models,  diagrams,  and  exhibits    of 
Notice  and  Service.  material. 

4.  Record  in  bankruptcy.  12.  Original  papers.     Transcript  of  the 

5.  Mistaken  designation — effect  of.  record — The  statute. 

6.  Opinions  of  the  court  annexed  to  13.  The  rule. 

record.  14.  Practice  in  Second  Circuit. 

§  i.  Admonition  to  the  Bar  to  prepare  their  records  carefully. 

The  United  States  Circuit  Court  of  Appeals  for  the  5th  Circuit 
issued  the  following  warning  to  the  members  of  the  Bar  of  the 
5th  Circuit. 

"  Our  attention  was  called  in  the  oral  argument  to  the  fact  that  the  transcript 
of  record  is  not  made  up,  as  it  might  well  have  been,  in  accordance  with  the 
seventy-fifth,  seventy-sixth,  and  seventy-seventh  equity  rules  of  the  Supreme 
Court  (226  U.  S.,  Appendix,  pp.  23,  24, 33,  Sup.  Ct.  xl,  xli),  and  that  it  is  diffuse, 
containing  much  unnecessary  matter,  including  duplicates  of  many  papers  and 
immaterial  parts  of  exhibits,  documents,  etc.,  and  we  were  urged  to  impose  costs 
for  the  infraction  of  the  rules. 

"  In  this  particular  case,  as  we  affirm  the  judgment,  the  costs  will  be  taxed  to 
the  appellant,  a  trustee  in  bankruptcy,  and  it  appears  that  the  only  real  relief 
we  could  give  in  the  matter  would  be  to  tax  the  unnecessary  costs  to  the  solicitors 
who  admittedly  directed  the  preparation  of  the  transcript.  As  no  motion  was 
put  on  record  in  the  case,  we  are  indisposed  to  apply  this  extreme  remedy;  but 
we  take  occasion  to  admonish  the  Bar  generally  that  the  above-mentioned  rules  of  the 
Supreme  Court  are  to  be  enforced,  and  that  it  is  incumbent  upon  the  solicitors  taking 
out  an  appea*  to  see  that  they  are  complied  with.  "* 


1  Coxe  v.  Peck-Williamson  Heating  &  Ventilating  Co.,  208  Fed.  409  (C.  C.  A., 
Fifth  Circuit).  See  also  Firestone  Tire  &  Rubber  Co.  v.  Seberling,  236  Fed.  891 
(C.  C.  A.  Sixth  Circuit). 

(248) 


Ch.  XVIII)  THE   RECORD   IN   EQUITY  §§  2-3 

§  2.  Taxing  costs  against  attorneys — when. 

"  If  this  court  shall  find  that  portions  of  the  record  unnecessary  to  a  proper 
presentation  of  the  case  have  been  incorporated  into  the  transcript  by  either 
party,  the  court  may  order  that  the  whole  or  any  part  of  the  clerk's  fee  for  super- 
vising the  printing  and  of  the  cost  of  printing  the  record  be  paid  by  the  offending 
party."1 

§  3.  Record  on  appeal  in  equity— Abstracting  testimony.   Prae- 
cipe.   Notice  and  service. 
Equity  Rule  75  promulgated  by  the  Supreme  Court  of  the 
U.  S.  provides: 

"In  case  of  appeal: 

"  (a)  It  shall  be  the  duty  of  the  appellant  or  his  solicitor  to  file  with  the  clerk 
of  the  court  from  which  the  appeal  is  prosecuted,  together  with  proof  or  acknowl- 
edgment of  service  of  a  copy  on  the  appellee  or  his  solicitor,  a  praecipe  which  shall 
indicate  the  portions  of  the  record  to  be  incorporated  into  the  transcript  on  such 
appeal.  Should  the  appellee  or  his  solicitor  desire  additional  portions  of  the 
record  incorporated  into  the  transcript,  he  shall  file  with  the  clerk  of  the  court 
his  pmcipe  also  within  ten  days  thereafter,  unless  the  time  shall  be  enlarged  by 
the  court  or  a  judge  thereof,  indicating  such  additional  portions  of  the  record 
desired  by  him. 

"  (b)  The  evidence  to  be  included  in  the  record  shall  not  be  set  forth  in  full, 
but  shall  be  stated  in  simple  and  condensed  form,  all  parts  not  essential  to  the 
decision  of  the  questions  presented  by  the  appeal  being  omitted  and  the  testi- 
mony of  witnesses  being  stated  only  in  narrative  form,  save  that  if  either  party 
desires  it,  and  the  court  or  judge  so  directs,  any  part  of  the  testimony  shall  be 
reproduced  in  the  exact  words  of  the  witness.  The  duty  of  so  condensing  and 
stating  the  evidence  shall  rest  primarily  on  the  appellant,  who  shall  prepare  his 
statement  thereof  and  lodge  the  same  in  the  clerk's  office  for  the  examination  of 
the  other  parties  at  or  before  the  time  of  filing  his  praecipe  under  paragraph  a  of 
this  rule.  He  shall  also  notify  the  other  parties  or  their  solicitors  of  such  lodg- 
ment and  shall  name  a  time  and  place  when  he  will  ask  the  court  or  judge  to 
approve  the  statement,  the  time  so  named  to  be  at  least  ten  days  after  such 
notice.  At  the  expiration  of  the  time  named  or  such  further  time  as  the  court  or 
judge  may  allow,  the  statement,  together  with  any  objections  made  or  amend- 
ments proposed  by  any  party,  shall  be  presented  to  the  court  or  the  judge,  and 
if  the  statement  be  true,  complete,  and  properly  prepared,  it  shall  be  approved 
by  the  court  or  judge,  and  if  it  be  not  true,  complete,  or  properly  prepared,  it 
shall  be  made  so  under  the  direction  of  the  court  or  judge  and  shall  then  be 
approved.  When  approved,  it  shall  be  filed  in  the  clerk's  office  and  become  a 
part  of  the  record  for  the  purposes  of  the  appeal. 


1  Rule  8  of  Supreme  Court. 

(249) 


Ch.  XVIII)  THE   RECORD   IN   EQUITY  §  4 

"  (c)  If  any  difference  arise  between  the  parties  concerning  directions  as 
to  the  general  contents  of  the  record  to  be  prepared  on  the  appeal,  such  differ- 
ence shall  be  submitted  to  the  court  or  judge  in  conformity  with  the  provisions 
of  paragraph  b  of  this  rule  and  shall  be  covered  by  the  directions  which  the 
court  or  judge  may  give  on  the  subject."1 

Rule  76.     Record  on  appeal — reduction  and   preparation  — 
costs — correction  of  omissions. 

"In  preparing  the  transcript  on  an  appeal,  especial  care  shall  be  taken  to 
avoid  the  inclusion  of  more  than  one  copy  of  the  same  paper  and  to  exclude  the 
formal  and  immaterial  parts  of  all  exhibits,  documents,  and  other  papers  included 
therein;  and  for  any  infraction  of  this  or  any  kindred  rule  of  the  appellate  court 
may  withhold  or  impose  costs  as  the  circumstances  of  the  case  and  the  discourage- 
ment of  like  infractions  in  the  future  may  require.  Costs  for  such  an  infraction 
may  be  imposed  upon  offending  solicitors  as  well  as  parties. 

"  If,  in  the  transcript,  anything  material  to  either  party  be  omitted  by  accident 
or  error,  the  appellate  court,  on  a  proper  suggestion  or  its  own  motion,  may 
direct  that  the  omission  be  corrected  by  a  supplemental  transcript. " 

Rule  77.     Record  on  appeal — agreed  statement. 

"When  the  questions  presented  by  an  appeal  can  be  determined  by  the 
appellate  court  without  an  examination  of  all  the  pleadings  and  evidence,  the 
parties,  with  the  approval  of  the  district  court  or  the  judge  thereof,  may  prepare 
and  sign  a  statement  of  the  case  showing  how  the  questions  arose  and  were 
decided  in  the  district  court  and  setting  forth  so  much  only  of  the  facts  alleged 
and  sought  to  be  proved,  as  is  essential  to  a  decision  of  such  questions  by  the 
appellate  court.  Such  statement,  when  filed  in  the  office  of  the  clerk  of  the 
district  court,  shall  be  treated  as  superseding,  for  the  purposes  of  the  appeal,  all 
parts  of  the  record  other  than  the  decree  from  which  the  appeal  is  taken,  and, 
together  with  such  decree,  shall  be  copied  and  certified  to  the  appellate  court  as 
the  record  on  appeal. " 

§  4.  Record  in  bankruptcy. 
Clause  3  of  General  Order  36  reads  as  follows: 

"In  every  case  in  which  either  party  is  entitled  by  the  act  to  take  an  appeal 
to  the  Supreme  Court  of  the  United  States,  the  court  from  which  the  appeal  lies 
shall,  at  or  before  the  time  of  entering  its  judgment  or  decree,  make  and  file  a 


1  Firestone  Tire  &  Rubber  Co.  v.  Seberling,  236  Fed.  891  (C.  C.  A.,  Sixth  Circuit). 
This  rule  does  not  apply  to  records  printed  in  the  court  below  before  the  rule 
became  in  force.  U.  S.  v.  U.  S.  Steel  Corporation,  240  U.  S.  442,  36  Sup.  Ct.  Rep. 
408,  60  L.  Ed.  731. 

(250) 


Ch.  XVIII)  THE  RECORD  IN  EQUITY  §§  5~8 

finding  of  the  facts,  and  its  conclusions  of  law  thereon,  stated  separately;  and  the 
record  transmitted  to  the  Supreme  Court  of  the  United  States  on  such  an  appeal 
shall  consist  only  of  the  pleadings,  the  judgment  or  decree,  the  finding  of  facts> 
and  the  conclusions  of  law.  "x 

§  5.  Mistaken  designation — effect  of. 

Where  appellant  being  doubtful  of  his  procedure,  instead  of 
preparing  a  statement  of  the  evidence  in  narrative  form  reduced 
the  evidence  in  the  form  of  a  bill  of  exceptions,  it  was  held  that  it 
will  be  treated  as  a  statement  of  evidence  under  Equity  Rule  65. 2 
§  6.  Opinions  of  the  court  annexed  to  record. 

Section  2  of  Rule  8  of  the  Supreme  Court  of  the  United  States 
further  provides : 

"In  all  cases  brought  to  this  court,  by  writ  of  error  or  appeal,  to  review  any 
judgment  or  decree,  the  clerk  of  the  court  by  which  such  judgment  or  decree  was 
rendered  shall  annex  to  and  transmit  with  the  record  a  copy  of  the  opinion  or 
opinions  filed  in  the  case.  "3 

Formerly  the  opinions  of  the  State  Court  were  not  considered 
part  of  the  record.    Later  it  has  been  held  that  opinions  of  the 
court  form  a  part  of  the  record  where  the  statute  of  the  State 
requires  the  court  to  file  opinions  in  each  case. 4 
§  7.  Opinions  of  the  courts  of  the  State  of  New  York. 

The  opinions  of  the  Supreme  Court  of  New  York  are  regarded 
as  being  a  part  of  the  record.5 
§  8.  The  rule  generally. 

It  is  now  the  general  practice  of  the  Supreme  Court  to  examine 

*  Chapman  v.  Bowen,  207  U.  S.  89,  28  Sup.  Ct.  Rep.  32,  52  L.  Ed.  116,  117; 
Lehnen  v.  Dickson,  148  U.  S.  71,  74,  37  L.  Ed.  373,  374,  13  Sup.  Ct.  Rep.  481; 
British  Queen  Min.  Co.  v.  Baker  Silver  Min.  Co.,  139  U.  S.  222,  35  L.  Ed.  147,  11 
Sup.  Ct.  Rep.  523,  and  cases  cited. 

a  Westerman  Co.  v.  Dispatch  Printing  Co.  (C.  C.  A.,  6th  Cir.),  233  Fed.  609. 

3  Rule  XIV.  of  the  U.  S.  Court  of  Appeals  for  the  Second  Circuit  is  identical  with 
this  rule. 

4  Phila.  Casualty  Co.  v.  Fechheimer,  220  Fed.  401;  Thompson  v.  R.  R.  Co.,  168 
U.  S.  457,  18  Sup.  Ct.  Rep.  121,  42  L.  Ed.  539;  Gross  v.  U.  S.  Mortgage  Co.,  108 
U.S.  477,  27  L.  Ed.  795,  2  Sup.  Ct.  Rep.  940. 

s  Wood  Mowing  &  Reaping  Co.  v.  Skinner,  139  N.  Y.  293. 

(251) 


Ch.  XVIII)  THE  RECORD  IN   EQUITY  §§9-12 

the  opinions  of  the  lower  courts  for  the  purpose  of  ascertaining 
whether  a  Federal  question  was  presented  and  decided. r 
§  9.  Record — Who   must  print. 

"The  plaintiff  in  error  or  appellant  shall  cause  the  record  to  be  printed,  ac- 
cording to  the  provisions  of  Sections  2,  3,  4,  5,  G,  and  9,  of  Rule  10." 
Rule  2,  U.  S.  Supreme  Court. 

§  10.  Translations. 

"  Whenever  any  record  transmitted  to  this  court  upon  a  writ  of  error  or  appeal 
shall  contain  any  document,  paper,  testimony,  or  other  proceedings  in  a  foreign 
language,  and  the  record  does  not  also  contain  a  translation  of  such  document, 
paper,  testimony,  or  other  proceedings,  made  under  the  authority  of  the  inferior 
court,  or  admitted  to  be  correct,  the  record  shall  not  be  printed;  but  the  case 
shall  be  reported  to  this  court  by  the  clerk,  and  the  court  will  order  that  a  trans- 
lation be  supplied  and  inserted  in  the  record. " 

Rule  11,  U.  S.  Supreme  Court. 

§  11.  Models,  diagrams,  and  exhibits  of  material. 

"  1.  Models,  diagrams,  and  exhibits  of  material  forming  part  of  the  evidence 
taken  in  the  court  below,  in  any  case  pending  in  this  court,  on  writ  of  error  or 
appeal,  shall  be  placed  in  the  custody  of  the  marshal  of  this  court  at  least  one 
month  before  the  case  is  heard  or  submitted. 

"2.  All  models,  diagrams,  and  exhibits  of  material,  placed  in  the  custody  of 
the  marshal  for  the  inspection  of  the  court  on  the  hearing  of  a  case,  must  be 
taken  away  by  the  parties  within  one  month  after  the  case  is  decided.  When  this 
is  not  done,  it  shall  be  the  duty  of  the  marshal  to  notify  the  counsel  in  the  case, 
by  mail  or  otherwise,  of  the  requirements  of  this  rule;  and  if  the  articles  are  not 
removed  within  a  reasonable  time  after  the  notice  is  given,  he  shall  destroy  them, 
or  make  such  other  disposition  of  them  as  to  him  may  seem  best. " 

Rule  33,  U.  S.  Supreme  Court. 

§  12.  Original  papers.     Transcript  of  the  record — The   statute. 

Section  698  of  the  Revised  Statutes  of  the  United  States 
provides : 

"Upon  the  appeal  of  any  cause  in  equity,  or  of  admiralty  and  maritime  juris- 
diction, or  of  prize  or  no  prize,  a  transcript  of  the  record,  as  directed  by  law  to  be 


1  Tiernan  v.  Chicago  L.  I.  Co.,  214  Fed.  238;  Loeb  v.  Columbia  Twp.  Co.,  179 
U.  S.  472,  21  Sup.  Ct.  Rep.  174,  45  L.  Ed.  280;  U.  S.  v.  Taylor,  147  U.  S.  695,  13 
Sup.  Ct.  Rep.  479,  37  L.  Ed.  335;  Bank  of  Commerce  v.  Tennessee,  163  U.  S.  416, 
16  Sup.  Ct.  Rep.  1113,  41  L.  Ed.  211;  see  also  Chap.  XVI.,  §  6,  "Opinions." 

(252) 


Ch.  XVIII)  THE  RECORD  IN  EQUITY  §§  13-14 

made,  and  copies  of  the  proofs,  and  of  such  entries  and  papers  on  file  as  may  be 
necessary  on  the  hearing  of  the  appeal,  shall  be  transmitted  to  the  Supreme 
Court:  Provided,  That  either  the  court  below  or  the  Supreme  Court  may  order 
any  original  document  or  other  evidence  to  be  sent  up,  in  addition  to  the  copy  of 
the  record,  or  in  lieu  of  a  copy  of  a  part  thereof.  And  on  such  appeals  no  new 
evidence  shall  be  received  in  the  Supreme  Court,  except  in  admiralty  and  prize 
causes. " 

§  13.  The  Rule. 

Section  4,  of  Rule  8  of  the  Supreme  Court  of  the  United  States 
provides : 

"Whenever  it  shall  be  necessary  or  proper,  in  the  opinion  of  the  presiding 
judge  in  any  district  court,  that  original  papers  of  any  kind  should  be  inspected 
in  this  court  upon  writ  of  error  or  appeal,  such  presiding  judge  may  make  such 
rule  or  order  for  the  safe-keeping,  transporting,  and  return  of  such  original 
papers  as  to  him  may  seem  proper,  and  this  court  will  receive  and  consider  such 
original  papers  in  connection  with  the  transcript  of  the  proceedings. " 

Identical  with  Rule  14  of  United  States  Court  of  Appeals, 
Second  Circuit. 

But  this  cannot  be  done  merely  to  save  expense.1 

§  14.  Practice  in  Second  Circuit. 

It  seems  that  by  general  consent  of  the  bar  of  this  circuit  the  requirements  of 
Equity  Rule  75  are  dispensed  with.  This  is  done  by  written  stipulation  waiv- 
ing the  rule,  supplemented  by  an  order  of  the  trial  judge  directing  the  record  to 
be  printed  in  hoc  verba.  It  has  not  yet  been  decided  whether  the  provisions  of 
Rule  75  may  be  waived  by  consent.  There  is  but  one  case  on  record  2  where  the 
Supreme  Court  waived  the  Rule,  but  it  did  this  for  exceptional  reasons. 
The  Supreme  Court  never  intimated  that  the  rule  may  be  dispensed  with  by 
mere  consent  of  counsel  and  the  trial  judge. 


1  Dowagiac  Mfg.  Co.  v.  Brennan,  156  Fed.  213. 

2U.  S.  v.  U.  S.  Steel  Corporation,  240  U.  S.  442,  36  Sup.  Ct.  Rep.  408,  60  L. 
Ed.  731. 


(253) 


Ch.  XIX)  PROCEDURE  IN  THE  APPELLATE  COURTS 


CHAPTER  XIX 


Procedure  in  the  Appellate  Courts 


Sec. 
1. 


9. 

10. 


U 

12. 
13. 
14. 
15. 

16. 


17. 
18. 

19. 


Filing  the  Record  and  Docketing 

the  Cause.     Time. 
Fees     and     deposits.     Deposit     on 

docketing. 
Enlarging  time  to  file  record. 
Time  for  return. 
Appellee  or  defendant  in  error  may 

docket. 
Appearance  of    counsel.      Must  be 

member  of  the  Bar  of  the  U.  S. 

Supreme  Court. 
Appearance     by    appellee     in    ad- 
miralty. 
Must  be  returned  not  later  than  the 

next  term. 
Rule  directory  only. 
Settling  the  Record.     Statement 

of  errors  to  be  filed  after  docketing 

cause. 
Printing  the  Record.     Clerk   to 

demand  estimated  cost. 
Practice  in  Second  Circuit. 
When  printed  copies  supplied. 
Cost  for  preparing  record. 
Filing  printed  records  used  in  court 

below. 
Printed   record   used  in   the   State 

Court  may  be  refiled  in  the  U.  S. 

Supreme  Court. 
Cost  of  printing  to  be  taxed  against 

losing  party. 
Death  of  a  party: 

(a)  Pending  appeal. 

(b)  When  substitution  will  not  be 
permitted. 

(c)  Before  appeal  taken. 
Certiorari  for  diminution  of  record. 

(254) 


Sec. 
20. 


21. 
22. 
23. 

24. 
25. 
26. 

27. 
28. 

29. 
30. 
31. 
32. 


33. 
34. 

35. 
36. 
37. 
38. 
39. 
40. 

41. 
42. 


Proceedings  after  Docketing 
Cause.  Printed  records  and 
briefs.  Form  and  size — Supreme 
Court — Circuit  Court  of  Appeals. 

Time  for  filing  briefs. 

Briefs — Number  of  copies. 

Briefs — The  contents.  Subject  in- 
dex and  alphabetical  list  of  cases. 

Specifying  pages  of  record  in  brief. 

Citation  of  doubtful  authorities. 

Where  no  questions  of  law  are 
presented  in  Supreme  Court. 

Specification  of  errors  in  brief. 

Briefs  stricken  for  scandal  and 
impertinence. 

Dismissal  for  failure  to  file. 

Printed  arguments — Briefs. 

Must  be  served.     ■ 

Motions  in  Supreme  Court: 

(a)  In  writing. 

(b)  Motions  will  be  heard  only  on 
Monday. 

(c)  Time  for  argument. 

(d)  Notice  in  admiralty  appeals. 

Motions  in  Circuit  Court  of  Appeals. 

Motions  to  dismiss  or  affirm.  Gen- 
eral practice  in  Supreme  Court. 

When  appeal  taken  for  delay. 
Must  be  made  on  printed  briefs. 
Notice  necessary. 
Before  record  printed. 
Foreclosed  by  prior  decisions. 
Presumption        against        granting 

motion. 
Lack  of  jurisdiction  apparent. 
Time  for  filing  record — Motion  to 

dismiss. 


Ch.  XIX)     PROCEDURE  IN  THE  APPELLATE  COURTS 


§1 


Sec. 

43.  Placing  a  cause  on  summary  docket. 

44.  Dismissal  by  consent  or  by  appellant. 

45.  Precedence.     Advancing   causes   on 

motion. 

46.  Advancing  habeas  corpus  case. 

47.  Use  of  law  library. 

48.  Hearing  of  the  cause. 

49.  Consolidation  of  actions  for  hearing. 

50.  Passing  and  reinstating  cause. 

51.  Oral  arguments. 

52.  Effect  of  failure  to  appear  or  file  brief: 

(a)  Of  plaintiff  in  error  or  appel- 
lant. 

(b)  Of    defendant    in    error     or 
appellee. 

(c)  Of  either  party. 

(d)  At  second  term. 

53.  Rehearing.     Time  for  petition. 

54.  Effect  of  order  staying  mandate. 

55.  In    criminal    cases — Rehearing     by 

Government. 

56.  Interest: 

(a)  On  affirmance. 


Sec. 


57 


(b)  In  equity. 

(c)  In  admiralty. 
Costs: 

(a)  On  dismissal. 

(b)  On  affirmance. 

(c)  On  reversal. 

(d)  U.  S.  a  party. 

(e)  Inserted  in  mandate. 

(f)  Applied  to   §§  238-241,  Fed. 
Jud.  Code. 

Damages  for  delay  on  affirmance  in 

error. 
Opinions  and  mandates.     Opinions 

of  the  court. 
When  mandates  issue. 
Recalling  mandate. 
62.  Power  of  court  to  amend  its  own 

judgments. 
Bill  of  review  for  errors  of  law  not 

entertained. 
General  provisions — Attorneys   and 

counsellors. 
Process. 


58 

59 

GO 
61 


03 


64 


05 


Time. 


§    I.   FILING  THE  RECORD  AND  DOCKETING  THE  CAUSE. 

Rule  9  of  the  U.  S.  Supreme  Court  provides: 

"1.  It  shall  be  the  duty  of  the  plaintiff  in  error  or  appellant  to  docket  the 
case  and  file  the  record  thereof  with  the  clerk  of  this  court  by  or  before  the  return 
day,  whether  in  vacation  or  in  term  time.  But,  for  good  cause  shown,  the  justice 
or  judge  who  signed  the  citation,  or  any  justice  of  this  court,  may  enlarge  the 
time,  by  or  before  its  expiration,  the  order  of  enlargement  to  be  filed  with  the 
clerk  of  this  court.  If  the  plaintiff  in  error  or  appellant  shall  fail  to  comply  with 
this  rule,  the  defendant  in  error  or  appellee  may  have  the  cause  docketed  and 
dismissed  upon  producing  a  certificate,  whether  in  term  time  or  vacation,  from 
the  clerk  of  the  court  wherein  the  judgment  or  decree  was  rendered,  stating  the 
case  and  certifying  that  such  writ  of  error  or  appeal  has  been  duly  sued  out  or 
allowed.  And  in  no  case  shall  the  plaintiff  in  error  or  appellant  be  entitled  to 
docket  the  case  and  file  the  record  after  the  same  shall  have  been  docketed  and 
dismissed  under  this  rule,  unless  by  order  of  the  court. " r 

The  record  must  be  filed  before  the  end  of  the  next  term 
succeeding  the  issue  of  the  writ  of  error  or  the  allowance  of  the 
1  Identical  with  Rule  16  of  U.  S.  Court  of  Appeals,  Second  Circuit. 

(255) 


Ch.  XIX)  PROCEDURE   IN   THE  APPELLATE  COURTS  §§  2~5 

appeal,  unless  the  time  is  enlarged  by  the  judge  or  justice  issuing 
the  citation,  as  provided  by  the  rule  of  the  Supreme  Court  and 
rule  of  the  Court  of  Appeals.    A  failure  to  do  so  will  deprive  the 
Appellate  Court  of  jurisdiction. x 
§  2.  Fees  and  deposits.    Deposit  on  docketing. 

The  present  practice  is  to  deposit  with  the  clerk  of  the 
reviewing  court  the  sum  of  $25  at  the  time  the  cause  is  docketed, 
in  lieu  of  a  special  bond  to  protect  the  clerk's  fees,  which  was  the 
former  practice.2  The  sum  of  $35  is  required  to  be  deposited 
with  the  Clerk  of  the  Court  of  Appeals  in  the  Second  Circuit. 
§  3.  Enlarging  time  to  file  record. 

An  order  extending  time  to  file  record  made  by  a  district 
judge,  who  did  not  sign  the  citation  and  not  a  member  of  the 
Court  of  Appeals,  is  void  for  want  of  jurisdiction. 3 
§  4.  Time  for  return. 

Section  5,  of  Rule  8  of  the  Supreme  Court  of  the  United 
States  provides: 

"All  appeals,  writs  of  error,  and  citations  must  be  made  returnable  not  ex- 
ceeding thirty  days  from  the  day  of  signing  the  citation,  whether  the  return  day 
fall  in  vacation  or  in  term  time,  and  be  served  before  the  return  day,  except  in 
writs  of  error  and  appeals  from  California,  Oregon,  Nevada,  "Washington,,  New 
Mexico,  Utah,  Arizona,  Montana,  Wyoming,  North  Dakota,  South  Dakota, 
Alaska,  Idaho,  Hawaii,  and  Porto  Rico,  when  the  time  shall  be  extended  to_sixtv 
days  and  from  the  Philippine  Islands  to  one  hundred  and  twenty  days.  "4 

§  5*  Appellee  or  defendant  in  error  may  docket. 

"But  the  defendant  in  error  or  appellee  may,  at  his  option,  docket  the  case  and 
file  a  copy  of  the  record  with  the  clerk  of  this  court ;  and  if  the  case  is  docketed 
and  a  copy  of  the  record  filed  with  the  clerk  of  this  court  by  the  plaintiff  in 
error  or  appellant  within  the  period  of  time  above  limited  and  prescribed  by  this 
rule,  or  by  the  defendant  in  error  or  appellee  at  any  time  thereafter,  the  case 
shall  stand  for  argument."5 

'Freeman  v.  U.  S.  227  Fed;  732;  Hill  v.  Chicago  &  Evanston  R.  R.  Co.,  129 
U.  S.  170,  9  Sup.  Ct.  Rep.  269,  32  L.  Ed.  651;  Edmonson  v.  Bloomshire,  7  Wall. 
(U.  S.)  309,  19  L.  Ed.  91. 

2  Section  7  of  Rule  XXIV.  of  the  Supreme  Court  of  the  United  States. 

3  West  v.  Irwin,  54  Fed,  419,  4  C.  C.  A.  401;  Freeman  v.  U.  S.,  227  Fed.  732. 

4  Thirty  (30)  days  is  the  limit  for  return  in  the  Second  Circuit.    See  Rule  14. 
s  §  2,  Rule  9,  U.  S.  Supreme  Court  Rules. 

(256) 


Ch.  XIX)  PROCEDURE  IN  THE  APPELLATE  COURTS  §§  6~8 

This  rule  is  identical  with  Rule  16. 
§  6.  Appearance  of  counsel.    Must  be  member  of  the  Bar  of  the 
U.  S.  Supreme  Court. 

"  Upon  the  filing  of  the  transcript  of  a  record  brought  up  by  writ  of  error  or 
appeal,  the  appearance  of  the  counsel  for  the  party  docketing  the  case  shall  be 
entered."1 

It  may  be  added  that  the  attorney  entering  the  appearance 
must  be  a  member  of  the  Bar  of  the  Supreme  Court  of  U.  S.  and 
must  sign  his  individual  and  not  firm  name. 
§  7.  Appearance  by  appellee  in  admiralty. 

If  the  appellee  does  not  cause  his  appearance  to  be  entered 
in  this  court  within  ten  days  after  service  on  his  proctor  of  notice 
that  the  apostles  are  filed  in  this  court,  the  appellant  may  proceed 
ex  parte  in  the  cause,  and  have  such  decree  as  the  nature  of  the 
case  may  demand.2 
§  8.  Must  be  returned  not  later  than  the  next  term. 

The  writ  of  error  becomes  void  if  not  returned  at  the  next 
term.3 

Where  the  transcript  or  return  is  filed  in  the  Appellate  Court 
after  the  return  day  named  in  the  writ,  but  before  the  expiration 
of  the  next  term  after  the  writ  issued,  the  writ  is  in  force  unless 
before  the  filing  of  the  transcript  or  return  the  defendant  in  error 
has  moved  to  dismiss  the  case.  If  the  case  is  not  so  docketed  and 
dismissed  by  the  appellee,  the  appellant  is  in  time  if  the  record  be 
filed  during  the  return  term.4 

*§  3,  Rule  9,  U.  S.  Supreme  Court.  2  Rule  6  in  Admiralty. 

3  Blair  v.  Miller,  4  Dallas  21,  1  L.  Ed.  724. 

4  Evans  v.  Bank,  134  U.  S.  330, 331, 10  Sup.  Ct.  493,  494,  33  L.  Ed.  917;  Chow  Loy 
v.  United  States,  112  Fed.  354,  357,  50  C.  C.  A.  279;  Green  v.  Elbert,  137  U.  S.  615, 
621,  11  Sup.  Ct.  188,  34  L.  Ed.  792;  Southern  Pine  Co.  v.  Ward,  208  U.  S.  126,  137, 
28  Sup.  Ct.  Rep.  239,  52  L.  Ed.  420;  Gould  v.  United  States,  205  Fed.  844  (C.  C.  A. 
8th  Cir.) ;  Ponder  v.  Brown,  120  Fed.  496,  56  C.  C.  A.  664;  Taylor  v.  Leesnitzer,  220 
U.  S.  90,  31  Sup.  Ct.  Rep.  371,  55  L.  Ed.  382;  Altenberg  v.  Grant,  83  Fed.  980,  28 
C.  C.  A.  244;  Thomas  v.  Green  County,  146  Fed.  969,  77  C.  C.  A.  487;  Martin  v. 
Burford,  176  Fed.  554,  100  C.  C.  A.  159;  Gilbert  v.  Hopkins,  198  Fed.  849,  117  C.  C. 
A.  491;  Shea  v.  U.  S.,  224  Fed.  426. 

17  (257) 


Ch.  XIX)  PROCEDURE  IN  THE   APPELLATE  COURTS  §§  9—11 

§  9.  Rules  directory  only. 

The  rules  relating  to  the  time  within  which  the  record  must  be 
filed  in  the  Appellate  Court  are  not  jurisdictional,  but  directory, 
and  whether  a  cause  will  be  dismissed  for  failure  to  file  the  record 
in  time  rests  in  the  sound  discretion  of  the  court. x 
§  10.  settling  the  record.  Statement  of  errors  to  be  filed 
after  docketing  cause. 

Section  9  of  Rule  10  of  the  Supreme  Court  of  the  United 
States  provides : 

"The  plaintiff  in  error  or  appellant  may,  within  ninety  days  after  filing  the 
record  in  this  court,  file  with  the  clerk  a  statement  of  the  errors  on  which  he 
intends  to  rely,  and  of  the  parts  of  the  record  which  he  thinks  necessary  for  the 
consideration  thereof,  with  proof  of  service  of  the  same  on  the  adverse  party. 
The  adverse  party,  within  ninety  days  thereafter,  may  designate  in  writing, 
filed  with  the  clerk,  additional  parts  of  the  record  which  he  thinks  material;  and, 
if  he  shall  not  do  so,  he  shall  be  held  to  have  consented  to  a  hearing  on  the  parts 
designated  by  the  plaintiff  in  error  or  appellant.  If  parts  of  the  record  shall  be  so 
designated  by  one  or  both  of  the  parties,  the  clerk  shall  print  those  parts  only; 
and  the  court  will  consider  nothing  but  those  parts  of  the  record,  and  the  errors 
so  stated.  If  at  the  hearing  it  shall  appear  that  any  material  part  of  the  record 
has  not  been  printed,  the  writ  of  error  or  appeal  may  be  dismissed,  or  such  other 
order  made  as  the  circumstances  may  appear  to  the  court  to  require.  If  the 
defendant  in  error  or  appellee  shall  have  caused  unnecessary  parts  of  the  record 
to  be  printed,  such  order  as  to  costs  may  be  made  as  the  court  shall  think  proper." 

§  ii.  printing  the  record.     Clerk  to  demand  estimated  cost. 

Sections  2  and  9  of  Rule  10  of  the  Supreme  Court : 

"2.  Immediately  after  the  designation  of  the  parts  of  the  record  to  be  printed 
or  the  expiration  of  the  time  allotted  therefor,  the  clerk  shall  make  an  estimate  of 
the  cost  of  printing  the  record,  his  fee  for  preparing  it  for  the  printer  and  super- 
vising fee,  and  other  probable  fees,  and  upon  application  therefor  shall  furnish 
the  same  to  the  party  docketing  the  case.  If  such  estimated  sum  be  not  paid 
within  ninety  days  after  the  cause  is  docketed,  it  shall  be  the  duty  of  the  clerk  to 
report  that  fact  to  the  court,  and  thereupon  the  cause  will  be  dismissed,  unless 
good  cause  to  the  contrary  is  shown. 

"9.  When  the  record  is  filed,  or  within  twenty  days  thereafter,  the  plaintiff 
in  error  or  appellant  may  file  with  the  clerk  a  statement  of  the  points  on  which  he 
intends  to  reply  and  of  the  parts  of  the  record  which  he  thinks  necessary  for  the 


1  Freeman  v.  U.  S.,  227  Fed.  732;  Florida  v.  Phosphate  Co.,  70  Fed.  883,  17  C.  C. 
A. 472. 

(258) 


Ch.  XIX)     PROCEDURE  IN  THE  APPELLATE  COURTS         §§  12 

consideration  thereof,  with  proof  of  service  of  the  same  on  the  adverse  party. 
The  adverse  party,  within  thirty  days  thereafter,  may  designate  in  writing,  filed 
with  the  clerk,  additional  parts  of  the  record  which  he  thinks  material;  and,  if 
he  shall  not  do  so,  he  shall  be  held  to  have  consented  to  a  hearing  on  the  parts 
designated  by  the  plaintiff  in  error  or  appellant.  If  parts  of  the  record  shall  be  so 
designated  by  one  or  both  of  the  parties,  the  clerk  shall  print  those  parts  only; 
and  the  court  will  consider  nothing  but  those  parts  of  the  record  and  the  points 
so  stated.  If  at  the  hearing  it  shall  appear  that  any  material  part  of  the  record 
has  not  been  printed,  the  writ  of  error  or  appeal  may  be  dismissed  or  such  other 
order  made  as  the  circumstances  may  appear  to  the  court  to  require.  If  the 
defendant  in  error  or  appellee  shall  have  caused  unnecessary  parts  of  the  record 
to  be  printed,  such  order  as  to  costs  may  be  made  as  the  court  shall  think  proper." 

The  fees  of  the  clerk  under  Rule  24,  Section  7,  shall  be  computed,  as  at  present, 
on  the  folios  in  the  record  as  filed,  and  shall  be  in  full  for  the  performance  of  his 
duties  in  the  execution  hereof. 

Where  a  final  jvdgment  or  decree  is  sought  to  be  reviewed  by  writ  of  error  or 
appeal,  the  Act  of  February  13,  1911,  C.  47,  36  Stat.  901,  U.  S.  Comp.  Stat.  Supp. 
1911,  p.  275,  abolisees  the  Court  of  Appeals  clerk's  fee  for  supervising  the  printing 
of  the  transcript.     This  act  does  not  apply  to  interlocutory  decrees. z 

§  12.  Practice  in  Second  Circuit. 

In  cases  which  fall  within  the  provisions  of  the  Act  of  February 
13, 1911,  the  plaintig  in  error  or  appellant  will  print  the  record  and 
serve  copies  thereof  in  accordance  with  the  provisions  of  said  Act. 
In  other  cases,  on  the  filing  of  the  transcript  in  every  case,  the  clerk 
shall  forthwith  cause  fifteen  copies  of  the  same  to  be  printed,  and 
shall  furnish  three  copies  thereof  to  each  party,  at  least  thirty  days 
before  the  argument,  and  shall  file  nine  copies  thereof  in  his  office. 
The  parties  may  stipulate  in  writing  that  parts  only  of  the  record 
shall  be  printed,  and  the  case  may  be  heard  on  the  parts  so 
printed;  but  the  court  may  direct  the  printing  of  other  parts  of 
the  record.  The  clerk  shall  be  entitled  to  demand  of  the  appel- 
lant, or  plaintiff  in  error,  the  cost  of  printing  the  record,  before 
ordering  the  same  to  be  done.  If  the  record  shall  not  have  been 
printed  when  the  case  is  reached  for  argument,  for  failure  of  a 
party  to  advance  the  costs  of  printing,  the  case  may  be  dismissed. 
In  case  of  reversal,  affirmance,  or  dismissal,  with  costs,  the  amount 

1  Smith  v.  Parben  fabriken,  197  Fed.  894,  117  C.  C.  A.  133;  Lovell  McConnell  Co. 
v.  Auto  Supply  Co.,  235  U.  S.  388,  35  Sup.  Ct.  Rep.  132,  59  L.  Ed.  282;  Rainey  v. 
Grace,  231 U.  S.  703,  34  Sup.  Ct.  Rep.  242,  58  L.  Ed.  445. 

(259) 


Ch.  XIX)  PROCEDURE  IN   THE  APPELLATE  COURTS  §§  13-15 

paid  for  printing  the  record  shall  be  taxed  against  the  party 

against  whom  costs  are  given.1 

§  13.  When  printed  copies  supplied. 

The  clerk  of  U.  S.  Court  of  Appeals  can  make  no  charge  for 
any  service  in  connection  with  the  printing  of  the  record,  where 
the  appellant  furnishes  the  requisite  number  of  printed  copies  of 
the  record  and  otherwise  complies  with  the  rule. 2 
§  14.  Cost  for  preparing  record. 

For  preparing  the  record  or  a  transcript  thereof  for  the  printer, 
indexing  the  same,  supervising  the  printing,  and  distributing  the 
printed  copies  to  the  justices,  the  reporter,  the  law  library,  and 
the  parties  or  their  counsel,  fifteen  cents  per  folio;  but  when  the 
necessary  printed  copies  of  the  record,  as  printed  for  the  use  of 
the  lower  court,  shall  be  furnished,  the  fee  for  supervising  shall  be 
five  cents  per  folio. 

For  making  a  manuscript  copy  of  the  record,  when  required 
under  Rule  10,  twenty  cents  per  folio,  but  nothing  in  addition  for 
supervising  the  printing.3 
§  15.  Filing  printed  records  used  in  court  below. 

"  In  any  cause  or  proceeding  wherein  the  final  judgment  or  decree  is  sought  to 
be  reviewed  on  appeal  to,  or  by  writ  of  error  from,  a  United  States  circuit  court 
of  appeals,  the  appellant  or  plaintiff  in  error  shall  cause  to  be  printed  under  such 
rules  as  the  lower  court  shall  prescribe,  and  shall  file  in  the  office  of  the  clerk  of 
such  circuit  court  of  appeals  at  least  twenty  days  before  the  case  is  called  for 
argument  therein,  at  least  twenty-five  printed  transcripts  of  the  record  of  the 
lower  court,  and  of  such  part  or  abstract  of  the  proofs  as  the  rules  of  such  circuit 
court  of  appeals  may  require,  and  in  such  form  as  the  Supreme  Court  of  the 
United  States  shall  by  rule  prescribe,  one  of  which  printed  transcripts  shall  be 
certified  under  the  hand  of  the  clerk  of  the  lower  court  and  under  the  seal  thereof, 
and  shall  furnish  three  copies  of  such  printed  transcript  to  the  adverse  party  at 
least  twenty  days  before  such  argument:  Provided,  That  either  the  court  below 
or  the  circuit  court  of  appeals  may  order  any  original  document  or  other  evidence 
to  be  sent  up  in  addition  to  the  printed  copies  of  the  record  or  in  lieu  of  printed 
copies  of  a  part  thereof;  and  no  written  or  typewritten  transcript  of  the  record 
shall  be  required. 


1  Rule  23,  C.  C.  A.  Second  Circuit. 

"  Rainey  v.  W.  R.  Grace  Co.,  231 U.  S.  703,  34  Sup.  Ct.  Rep.  242,  58  L.  Ed.  445. 

3  Rule  24,  U.  S.  Supreme  Court. 

(260) 


Ch.  XIX)  PROCEDURE  IN  THE  APPELLATE  COURTS  §§  16-17 


"That  in  any  cause  or  proceeding  wherein  the  final  judgment  or  decree  is 
sought  to  be  reviewed  on  appeal  to  or  by  writ  of  error  or  of  certiorari  from  the 
Supreme  Court  of  the  United  States,  in  which  the  record  has  been  printed  and 
used  upon  the  hearing  in  the  court  below  and  which  substantially  conforms  to  the 
printed  record  in  said  Supreme  Court,  if  there  have  been  at  the  time  of  filing  the 
record  in  the  court  below  twenty-five  copies  of  said  printed  record,  in  addition  to 
those  provided  in  the  preceding  section,  lodged  with  the  clerk  of  the  court  below, 
one  copy  thereof  shall  be  used  by  the  clerk  of  the  court  below  in  the  preparation 
and  as  a  part  of  the  transcript  of  the  record  of  the  court  below ;  and  no  fee  shall  be 
allowed  the  clerk  of  the  court  below  in  the  preparation  of  the  transcript  for  such 
part  thereof  as  is  included  in  said  printed  record  so  lodged  with  him.  And  the 
clerk  of  the  court  below  in  transmitting  the  transcript  of  record  to  the  Supreme 
Court  of  the  United  States  for  review  shall  at  the  same  time  transmit  the  re" 
maining  uncertified  copies  of  the  printed  record  so  lodged  with  him,  which  shall 
be  used  in  the  preparation  and  as  a  part  of  the  printed  record  in  the  Supreme 
Court  of  the  United  States,  and  the  clerk's  fee  for  preparing  the  record  for  the 
printer,  indexing  the  same,  supervising  the  printing  and  binding  and  distributing 
the  copies  shall  be  at  such  rate  per  folio  thereof,  exclusive  of  the  printed  record 
so  furnished  by  the  clerk  of  the  court  below,  as  the  Supreme  Court  of  the  United 
States  may  from  time  to  time  by  rule  prescribe;  and  no  written  or  typewritten 
transcript  of  so  much  of  the  record  as  shall  have  been  printed  as  herein  provided 
shall  be  required."1 

§  16.  Printed  record  used  in  the  State  court  may  be  refiled  in 
the  U.  S.  Supreme  Court. 

The  printed  record  used  in  the  highest  court  of  the  State  may 
be  utilized  in  the  United  States  Supreme  Court,  provided  thirty- 
copies  of  same  are  furnished  to  the  clerk  of  the  United  States 
Supreme  Court.  Parties  contemplating  carrying  their  cases 
to  the  Supreme  Court  of  the  United  States  should  print  their 
records  on  unglazed  paper,  this  being  the  rule  provided  for  the 
printing  of  records  in  that  court. 
§  17.  Cost  of  printing  to  be  taxed  against  losing  party. 

There  shall  be  taxed  against  the  losing  party  in  each  and 
every  cause  pending  in  the  Supreme  Court  the  cost  of  printing 
the  record  in  such  case,  except  when  the  judgment  is  against  the 
United  States.3 

*  36  Stat.  L.  901.    From  1912  Supp.  Fed.  Stat.,  p.  255. 

*  36  Stat.  L.  1160. 

(261) 


Ch.  XIX)  PROCEDURE   IN   THE   APPELLATE  COURTS  §  18 

§  1 8.  Death  of  a  party. 

(a)  "Whenever  pending  a  writ  of  error  or  appeal  in  this  court,  either  party 
shall  die,  the  proper  representatives  in  the  personalty  or  realty  of  the  deceased 
party,  according  to  the  nature  of  the  case,  may  voluntarily  come  in  and  be 
admitted  parties  to  the  suit,  and  thereupon  the  case  shall  be  heard  and  deter- 
mined as  in  other  cases;  and  if  such  representatives  shall  not  voluntarily  become 
parties,  then  the  other  party  may  suggest  the  death  on  the  record,  and  there- 
upon, on  motion,  obtain  an  order  that  unless  such  representatives  shall  become 
parties  within  the  first  ten  days  of  the  ensuing  term,  the  party  moving  for  such 
order,  if  defendant  in  error  or  appellee  shall  be  entitled  to  have  the  writ  of  error 
or  appeal  dismissed;  and  if  the  party  so  moving  shall  be  plaintiff  in  error  or 
appellant  he  shall  be  entitled  to  open  the  record,  and  on  hearing  have  the  judg- 
ment or  decree  reversed,  if  it  be  erroneous:  Provided,  however,  That  a  copy  of 
every  such  order  shall  be  printed  in  some  newspaper  of  general  circulation  within 
the  State,  Territory,  or  District,  from  which  the  case  is  brought,  for  three  succes- 
sive weeks,  at  least  sixty  days  before  the  beginning  of  the  term  of  the  Supreme 
Court  then  next  ensuing. z 

(b)  Mandamus  does  not  reach  the  office,  but  is  directed  to 
the  officer  to  compel  him  to  perform  a  duty  imposed  upon  him 
by  law.     The  death  of  the  officer  therefore  abates  the  suit.2 

There  can  be  no  substitution  of  parties  in  a  case  against  a 
public  official,  if  the  wrongful  act  complained  of  was  personal 
to  the  defendant  officer  who  died.3 

"When  the  death  of  a  party  is  suggested,  and  the  representatives  of  the  de- 
ceased do  not  appear  by  the  tenth  day  of  the  second  term  next  succeeding  the 
suggestion,  and  no  measures  are  taken  by  the  opposite  party  within  that  time 
to  compel  their  appearance,  the  case  shall  abate."4 

(c)  "  When  either  party  to  a  suit  in  a  court  of  the  United  States  shall  desire  to 
prosecute  a  writ  of  error  or  appeal  to  the  Supreme  Court  of  the  United  States, 
from  any  final  judgment  or  decree,  rendered  in  such  court,  and  at  the  time  of 
suing  out  such  writ  of  error  or  appeal  the  other  party  to  the  suit  shall  be  dead 
and  have  no  proper  representative  within  the  jurisdiction  of  the  court  which 
rendered  such  final  judgment  or  decree,  so  that  the  suit  cannot  be  revived  in 
that  court,  but  shall  have  a  proper  representative  in  some  State  or  Territory 
of  the  United  States,  the  party  desiring  such  writ  of  error  or  appeal  may  pro- 
cure the  same,  and  may  have  proceedings  on  such  judgment  or  decree  super- 


1  §  1,  Rule  15,  U.  S.  Supreme  Court. 

a  Pullman  Co.  v.  Groom,  231  U.  S.  571,  34  Sup.  Ct.  Rep.  182,  58  L.  Ed.  375. 
J  Pullman  Co.  v.  Groom,  231  U.  S.  571,  34  Sup.  Ct.  Rep.  182,  58  L.  Ed.  375. 
<§2Rule  15. 

(262) 


Ch.  XIX)  PROCEDURE  IN   THE  APPELLATE  COURTS  §  19 

seeled  or  stayed  in  the  same  manner  as  now  is  allowed  by  law  in  other  cases, 
and  shall  thereupon  proceed  with  such  writ  of  error  or  appeal  as  in  other  cases. 
And  within  thirty  days  after  the  commencement  of  the  term  to  which  such  writ 
of  error  or  appeal  is  returnable,  the  plaintiff  in  error  or  appellant  shall  make  a 
suggestion  to  the  court,  supported  by  affidavit,  that  the  said  party  was  dead 
when  the  writ  of  error  or  appeal  was  taken  or  sued  out,  and  had  no  proper  repre- 
sentative within  the  jurisdiction  of  the  court  which  rendered  said  judgment  or 
decree,  so  that  the  suit  could  not  be  revived  in  that  court,  and  that  said  party 
had  a  proper  representative  in  some  State  or  Territory  of  the  United  States, 
and  stating  therein  the  name  and  character  of  such  representative,  and  the  State 
or  Territory  in  which  such  representative  resides;  and,  upon  such  suggestion, 
he  may,  on  motion,  obtain  an  order  that,  unless  such  representative  shall  make 
himself  a  party  within  the  first  ten  days  of  the  ensuing  term  of  the  court,  the 
plaintiff  in  error  or  appellant  shall  be  entitled  to  open  the  record,  and,  on  hearing, 
have  the  judgment  or  decree  reversed,  if  the  same  be  erroneous :  Provided,  how- 
ever, That  a  proper  citation  reciting  the  substance  of  such  order  shall  be  served 
upon  such  representative,  either  personally  or  by  being  left  at  his  residence, 
at  least  sixty  days  before  the  beginning  of  the  term  of  the  Supreme  Court  then 
next  ensuing :  And  provided,  also,  That  in  every  such  case  if  the  representative 
of  the  deceased  party  does  not  appear  by  the  tenth  day  of  the  term  next  suc- 
ceeding said  suggestion,  and  the  measures  above  provided  to  compel  the  appear- 
ance of  such  representative  have  not  been  taken  within  time  as  above  required, 
by  the  opposite  party,  the  case  shall  abate:  And  provided,  also,  That  the  said 
representative  may  at  any  time  before  or  after  said  suggestion  come  in  and  be 
made  a  party  to  the  suit,  and  thereupon  the  case  shall  proceed,  and  be  heard 
and  determined  as  in  other  cases."1 

§  19.  Certiorari  for  diminution  of  record. 

"  No  certiorari  for  diminution  of  the  record  will  be  hereafter  awarded  in  any 
case,  unless  a  motion  therefor  shall  be  made  in  writing,  and  the  facts  on  which 
the  same  is  founded  shall,  if  not  admitted  by  the  other  party,  be  verified  by 
affidavit.  And  all  motions  for  certiorari  must  be  made  at  the  first  term  of  the 
entry  of  the  case;  otherwise,  the  same  will  not  be  granted,  unless  upon  special 
cause  shown  to  the  court,  accounting  satisfactorily  for  the  delay."3 

The  motion  will  not  be  granted  if  not  made  at  the  first  term 
as  required  by  Rule  14,  unless  a  satisfactory  cause  is  shown  for 
the  delay.3 

1  §  3,  Rule  15,  U.  S.  Supreme  Court. 

a  Rule  14,  U.  S.  Supreme  Court.     Identical  with  Rule  18  of  Circuit  Court  of 
Appeals. 

s  Apapas  v.  17.  S.,  233  17.  S.  587,  34  Sup.  Ct.  Rep.  704,  58  L.  Ed.  1104;  Chappell 
v.  United  States,  160  U.  S.  499,  510,  16  Sup.  Ct.  Rep.  397,  40  L.  Ed.  510,  49  Fed. 
139, 1  C.  C.  A.  139. 

(263) 


Ch.  XIX)  PROCEDURE  IN  THE  APPELLATE  COURTS  §  20 

Where  the  party  was  negligent  in  the  preparation  of  the 
record,  the  motion  will  be  denied. 

§  20.  Proceedings  after  docketing  cause.    Printed  records  and 
briefs.    Form  and  size.    Supreme  Court. 

Rule  31  of  the  Supreme  Court  of  U.  S.  provides  that  all  rec- 
ords, arguments,  and  briefs,  printed  for  the  use  of  the  court,  must 
be  in  such  form  and  size  that  they  can  be  conveniently  bound 
together,  so  as  to  make  an  ordinary  octavo  volume ;  and,  as  well 
as  all  quotations  contained  therein  and  the  covers  thereof,  must 
be  printed  in  clear  type  (never  smaller  than  small  pica)  and  on 
unglazed  paper. 
Form  and  size  of  records  and  briefs  in  Circuit  Court  of  Appeals. 

FIRST  CIRCUIT.  The  rule  as  to  form  and  size  of  rec- 
ords and  briefs  is  the  same  as  in  the  Supreme  Court  of  the 
United  States.  (See  Rule  31,  U.  S.  Supreme  LCourt,  see  p.  264 
ante), 

SECOND  CIRCUIT.  Rule  26  of  the  United  States  Circuit 
Court  of  Appeals  for  the  Second  Circuit  provides  that  all  argu- 
ments and  briefs  for  the  use  of  the  court  must  be  printed  upon  a 
page  eleven  inches  long  by  seven  inches  wide  and  must  have  a 
margin  of  at  least  two  inches  in  width. 

THIRD  CIRCUIT.  The  rule  as  to  form  and  size  of  records 
and  briefs  is  the  same  as  in  the  Supreme  Court  of  the  United 
States.     (See  Rule  31,  U.  S.  Supreme  Court,  see  p.  264,  ante). 

FOURTH  CIRCUIT.  Rule  26  of  the  United  States  Circuit 
Court  of  Appeals  for  the  Fourth  Circuit  provides  that  all  trans- 
cripts of  record,  addenda  thereto,  arguments,  and  briefs  printed 
for  the  use  of  this  court  shall  be  in  small  pica  type,  24  pica  "ems" 
to  a  line,  on  unglazed  paper,  with  an  index  and  a  suitable  cover 
containing  the  title  of  the  court,  the  cause,  and  the  court  from 
which  the  case  is  brought  into  this  court,  and  the  number  of  the 
case.  Size  of  pages  to  be  9}4  x  6j/±  inches,  except  that  in  patent 
cases  the  size  of  the  pages  shall  be  10^4  x  7V&  inches;  that  is  to 
say,  large  enough  to  bind  in  copies  of  Patent  Office  drawings  and 
specifications  without  folding.  So  much  of  the  record  as  was 
(264) 


Ch.  XIX)  PROCEDURE   IN  THE   APPELLATE  COURTS  §  20 

printed  in  the  court  below  may  be  used  in  this  court  if  it  conform 
to  this  rule. 

FIFTH  CIRCUIT.  The  rule  as  to  form  and  size  of  rec- 
ords and  briefs  is  the  same  as  in  the  Supreme  Court  of  the 
United  States.  (See  Rule  31,  U.  S.  Supreme  Court,  p.  264 
ante), 

SIXTH  CIRCUIT— RECORDS.  Rule  21  of  that  court 
provides  that  all  records  shall  be  of  a  uniform  size  printed  on 
unglazed  paper  in  small  pica  type,  twenty-four  pica  ems  to  a  line, 
forty-eight  lines  to  a  page  solid,  with  an  index  and  suitable  cover 
containing  the  title  of  the  court  and  cause,  the  court  from  which 
the  cause  is  brought,  and  the  number  of  the  case;  the  size  of  the 
pages  are  to  be  nine  and  one-half  by  six  and  one-half  inches, 
except  that,  in  patent  cases,  the  size  of  the  page  must  be  ten  and 
three-quarters  by  seven  and  five-eighths  inches. 

BRIEFS.  Printed  arguments  and  briefs  of  attorneys  shall 
conform  as  far  as  practicable  to  the  size  and  style  of  printed 
records,  but  shall  contain  about  thirty-six  lines  to  the  page  and 
be  leaded  with  at  least  two  point  leads. 

SEVENTH  CIRCUIT.  The  rule  as  to  form  and  size  of 
records  and  briefs  is  the  same  as  in  the  Supreme  Court  of  the 
United  States.     (See  Rule  31,  U.  S.  Supreme  Court.) 

EIGHTH  CIRCUIT.  Rule  26  of  the  Circuit  Court  of 
Appeals  for  the  Eighth  Circuit  provides : 

(1)  That  all  records,  arguments,  and  briefs  for  the  use  of  the 
court  must  be  printed  on  unglazed  paper  not  less  than  six  and  one- 
quarter  inches  wide  and  nine  and  one-half  inches  long,  including 
a  sufficient  margin  so  that  they  can  be  conveniently  trimmed 
and  bound  in  volumes.  The  paper  should  equal  a  weight  of  80 
pounds  per  ream  on  basis  of  size  of  sheet  25  x  38  inches. 

(2)  PATENT  CASES.  All  records  and  briefs  in  patent 
cause  may  be  printed  on  unglazed  paper,  of  the  weight  as  pro- 
vided in  section  one  of  this  rule,  of  such  size  that  copies  of  letters 
patent  may  be  inserted  therein  without  folding,  but  the  size  of 
such  records  and  briefs  in  patent  causes  shall  not  be  less  than 

(265) 


Ch.  XIX)     PROCEDURE  IN  THE  APPELLATE  COURTS  §  20 

seven  and  one-half  inches  wide  and  nine  and  one-half  inches  long 
so  that  the  records  and  briefs  can  be  conveniently  trimmed  and 
bound  in  volumes. 

(3)  All  records,  briefs,  supplemental  transcripts,  and  returns 
to  writs  of  certiorari  shall  be  printed  in  clear  eleven  point  or 
small  pica  type  (never  smaller  than  ten  point),  of  26  pica  or  28 
small  pica  ems  to  a  line,  and  52  lines,  including  running  head, 
solid,  per  printed  page,  containing  substantially,  1400  small  pica 
ems.  Where  testimony  or  depositions  by  question  and  answer 
are  printed  the  answer  shall  follow  on  same  line  as  the  question 
whenever  the  same  can  be  done. 

(4)  All  indexes  to  records  and  tabular  exhibits,  which  from 
their  nature  require  smaller  type,  may  be  printed  in  eight  point 
or  brevier  type. 

(5)  All  covers  for  records  shall  be  printed  in  a  neat  and 
workmanlike  manner  on  substantial  paper  equal  to  a  weight  of 
96  pounds  per  ream  on  the  basis  of  a  sheet  25  by  40  inches. 

NINTH  CIRCUIT— RECORDS.  Rule  26  of  the  United 
States  Circuit  Court  of  Appeals  for  the  Ninth  Circuit  provides  as 
follows: 

"All  records  printed  for  the  use  of  the  court  must  be  printed 
on  unglazed  paper,  nine  and  one-quarter  inches  long  and  six  and 
one-quarter  inches  wide.  The  printed  page  exclusive  of  any 
marginal  note,  reference,  or  running  head,  must  be  seven  inches 
long  and  four  inches  wide,  excepting  in  patent  cases  where  counsel 
furnish  to  the  clerk  at  the  time  of  docketing  the  cause  patent 
office  drawings  and  specifications  for  insertion.  In  such  cases 
the  margin  of  the  record  may  be  sufficiently  enlarged  to  accom- 
modate such  drawings  and  specifications.  The  record  must  be 
properly  indexed.  Pica  double-leaded  is  the  only  mode  of 
composition  allowed. " 

BRIEFS.  Rule  26  of  the  United  States  Circuit  Court  of 
Appeals  for  the  Ninth  Circuit  provides  as  follows : 

"All  arguments,  briefs,  and  petitions  for  rehearing,  printed 
for  the  use  of  the  court,  must  be  printed  on  unruled  white  writing 
(26G) 


Ch.  XIX)  PROCEDURE  IN  THE  APPELLATE  COURTS  §§  21-22 

paper,  nine  and  one-quarter  inches  long  and  six  and  one-quarter 
inches  wide.  The  printed  page,  exclusive  of  any  marginal  note, 
reference,  or  running  head,  must  be  seven  inches  long  and  four 
inches  wide.  Pica  double-leaded  is  the  only  mode  of  composi- 
tion allowed." 
§  21.  Time  for  filing  briefs. 

The  counsel  for  plaintiff  in  error  must  file  with  the  clerk  of 
the  Supreme  Court  at  least  three  weeks  before  the  case  is  called 
for  argument  thirty  copies  of  a  printed  brief,  one  of  which  shall 
be  signed  in  ink  by  such  counsel.  The  counsel  for  the  defendant 
in  error  must  file  with  the  clerk  a  like  number  of  printed  copies 
of  his  brief,  one  of  which  shall  be  signed  in  ink.  Rule  21  does 
not  provide  for  the  service  of  briefs  upon  the  opposite  party. 
An  exchange  of  briefs  is  required  on  motions  to  dismiss  appeals 
or  writs  of  error  or  affirm.  (See  Rule  6.)  But  it  is  customary 
and  it  is  the  better  practice  for  counsel  to  exchange  all  briefs. 
Where  no  exchange  is  made,  the  clerk  of  the  Supreme  Court  of 
the  United  States  will,  on  application,  furnish  the  briefs  filed 
for  the  use  of  the  opposite  party. 

The  brief  must  conform  to  Rule  21  of  the  Supreme  Court  of 
the  United  States.     For  further  requirements  see  below. 
§  22.  Briefs — Number  of  copies. 

"The  counsel  for  plaintiff  in  error  or  appellant  shall  file  with  the  clerk  of  the 
court,  at  least  three  weeks  before  the  case  is  called  for  argument,  thirty  copies 
of  a  printed  brief,  one  of  which  shall,  on  application,  be  furnished  to  each  of  the 
counsel  engaged  upon  the  opposite  side."1 

"The  counsel  for  a  defendant  in  error  or  an  appellee  shall  file  with  the  clerk 
thirty  printed  copies  of  his  argument,  at  least  one  week  before  the  case  is  called 
for  hearing.  His  brief  shall  be  of  like  character  with  that  required  of  the  plain- 
tiff in  error  or  appellant,  except  that  no  specification  of  errors  shall  be  required, 
and  no  statement  of  the  case,  unless  that  presented  by  the  plaintiff  in  error  or 
appellant  is  controverted."' 


1  §  1,  Rule  21,  U.  S.  Supreme  Court. 
3  §  3,  Rule  21,  U.  S.  Supreme  Court. 

(267) 


'Ch.  XIX)  PROCEDURE  IN  THE  APPELLATE  COURTS  §§  23-25 

§  23.  Briefs — The  contents.      Subject  index  and  alphabetical 
list  of  cases. 

"The  brief  shall  contain,  in  the  order  here  stated — 

"  (1)  A  concise  abstract,  or  statement  of  the  case,  presenting  succinctly 
the  questions  involved  and  the  manner  in  which  they  are  raised. 

"  (2)  A  specification  of  the  errors  relied  upon,  which,  in  cases  brought  up  by 
writ  of  error,  shall  set  out  separately  and  particularly  each  error  asserted  and 
intended  to  be  urged;  and  in  cases  brought  up  by  appeal  the  specification  shall 
state,  as  particularly  as  may  be,  in  what  the  decree  is  alleged  to  be  erroneous. 
When  the  error  alleged  is  to  the  admission  or  to  the  rejection  of  evidence,  the 
specification  shall  quote  the  full  substance  of  the  evidence  admitted  or  rejected. 
When  the  error  alleged  is  to  the  charge  of  the  court,  the  specification  shall  set 
out  the  part  referred  to  totidem  verbis,  whether  it  be  instructions  given  or  in- 
structions refused.  When  the  error  alleged  is  to  a  ruling  upon  the  report  of  a 
master,  the  specification  shall  state  the  exception  to  the  report  and  the  action 
of  the  court  upon  it. 

"  (3)  A  brief  of  the  argument,  exhibiting  a  clear  statement  of  the  points  of 
law  or  fact  to  be  discussed,  with  a  reference  to  the  pages  of  the  record  and  the 
authorities  relied  upon  in  support  of  each  point.  When  a  statute  of  a  State  is 
cited,  so  much  thereof  as  may  be  deemed  necessary  to  the  decision  of  the  case 
shall  be  printed  at  length." 

"  (4)  Every  brief  of  more  than  twenty  pages  shall  contain  on  its  front  fly- 
leaves a  subject  index  with  page  references,  the  subject  index  to  be  supple- 
mented by  a  list  of  all  cases  referred  to,  alphabetically  arranged,  together  with 
references  to  pages  where  the  cases  are  cited."1 

§  24.  Specifying  pages  of  record  in  brief. 

Pages  in  the  bill  of  exceptions  printed  in  the  transcript,  where 
the  proof,  if  there  is  any,  of  averment  of  errors  may  be  found, 
must  be  specified  in  the  brief  as  well  as  in  the  printed  transcript, 
where  pages  must  be  cited  as  to  where  errors  appear.2 
§  25.  Citation  of  doubtful  authorities. 

In  preparing  briefs  it  must  be  remembered  that  general  ex- 
pressions in  an  opinion  are  to  be  taken  in  connection  with  the 

1  Rule  21,  U.  S.  Supreme  Court. 

2  Rule  21,  Sup.  Ct.  If  2,  §  3;  111.  Central  R.  Co.  v.  Nelson,  212  Fed.  69,  76,  128 
C.  C.  A.  525;  Chicago,  Gt.  Western  Ry.  Co.  v.  Egan,  159  Fed.  40,  46;  Northwestern 
S.  B.  &  Mfg.  Co.  v.  Great  Lakes  E.  Wks.,  181  Fed.  38,  45,  104  C.  C.  A.  52;  City  of 
Lincoln  v.  Sun  Vapor  S.  L.  Co.,  59  Fed.  756,  8  C.  C.  A.  253;  Orr  &  Lindsley  Shoe 
Co.  v.  Needles,  67  Fed.  990,  995,  15  C.  C.  A.  142,  147. 

(268) 


Ch.  XIXJ "         PROCEDURE  IN  THE  APPELLATE  COURTS  §§  26-29 

case  in  which  such  expressions  are  used.     If  they  go  beyond  the 
particular  case,  they  may  be  respected,  but  ought  not  to  control 
the  judgment  in  a  subsequent  suit  when  the  very  point  is  presented 
for  decision.1 
§  26.  Where  no  questions  of  law  are  presented  in  Supreme  Court. 

The  Supreme  Court  of  the  United  States  will  not  review  a 
case  where  the  record  presents  no  question  of  law  which  would 
call  for  the  exercise  of  the  right  of  that  court  to  review. 2 
§  27.  Specification  of  errors  in  brief. 

Where  there  is  no  specification  of  the  errors  relied  on  in  the 
brief  of  the  counsel  for  plaintiff  in  error,  the  court  will  not  review 
the  case.3      Errors    assigned    but  not    argued  will  be  deemed 
waived.4 
§  28.  Briefs  stricken  for  scandal  and  impertinence. 

Briefs  will  be  stricken  from  the  files  if  they  are  of  a  vituperative 
kind.5 
§  29.  Dismissal  for  failure  to  file. 

A  case  will  be  dismissed  by  the  U.  S.  Supreme  Court  for 
want  of  an  assignment  of  errors  and  of  a  brief  such  as  is  required 
by  the  rules  of  the  court.6 

*'  When,  according  to  this  rule,  a  plaintiff  in  error  or  an  appellant  is  in  default, 
the  case  may  be  dismissed  on  motion;  and  when  a  defendant  in  error  or  an  appel- 


*  Northwestern  Terra  Cotta  Co.  v.  Caldwell  (C.  C.  A.  8th  Cir.),  234  Fed.  498; 
Cohens  v.  Virginia,  6  Wheat.  398,  5  L.  Ed.  259;  King  v.  Pomeroy,  121  Fed.  287, 
58  C.  C.  A.  209;  Traer  v.  Fowler,  144  Fed.  810,  75  C.  C.  A.  540;  Mason  City  v. 
Wolf,  148  Fed.  961,  78  C.  C.  A.  589;  Schapp  v.  U.  S.,  210  Fed.  853,  127  C.  C.  A. 
415;  Joplin  Mercantile  Co.  v.  U.  S.,  213  Fed.  926,  131  C.  C.  A.  160.  The  original 
Federal  reports  should  be  referred  to.     See  Rule  37  C.  C.  A.  2d  Cir. 

'Collins  v.  U.  S.,  219  Fed.  673;  Stevenson  v.  Barbour,  140  U.  S.  48,  11  Sup. 
Ct.  Rep.  690,  35  L.  Ed.  338. 

s Collins  v.  U.  S.,  219  Fed.  673;  Stevenson  v.  Barbour,  140  TJ.  S.  48, 11  Sup.  Ct. 
Rep.  690,  35  L.  Ed.  338. 

<  Saalfield  v.  Marion  Co.,  238  Fed.,  (C.  C.  A.  6th  Cir.) ;  Ironton  v.  Harrison,  212 
353  (129  C.  C.  A.  29.) 

s  Royal  Arcanum  v.  Green,  237  U.  S.  531,  35  Sup .  Ct.  Rep.  724,  59  L.  Ed.  1089. 
6  Benites  v.  Hampton,  123  U.  S.  519,  8  Sup.  Ct.  Rep.  254,  31  L.  Ed.  260 . 

(269) 


Ch.  XIX)  PROCEDURE   IN   THE  APPELLATE  COURTS  §§  30-32 

lee  is  in  default,  he  will  not  be  heard,  except  on  consent  of  his  adversary,  and 
by  request  of  the  court."1 

§  30.  Printed  arguments — Briefs. 

"In  all  cases  brought  here  on  writ  of  error,  appeal,  or  otherwise,  the  court 
will  receive  printed  arguments  without  regard  to  the  number  of  the  case  on  the 
docket,  if  the  counsel  on  both  sides  shall  choose  to  submit  the  same  within  the 
first  ninety  days  of  the  term ;  and,  in  addition,  appeals  from  the  Court  of  Claims 
may  be  submitted  by  both  parties  within  thirty  days  after  they  are  docketed, 
but  not  after  the  first  day  of  April;  but  thirty  copies  of  the  arguments,  signed 
by  attorneys  or  counsellors  of  this  court,  must  be  first  filed."3 

"When  a  case  is  reached  in  the  regular  call  of  the  docket,  and  a  printed  argu- 
ment shall  be  filed  for  one  or  both  parties,  the  case  shall  stand  on  the  same 
footing  as  if  there  were  an  appearance  by  counsel."3 

"When  a  case  is  taken  up  for  trial  upon  the  regular  call  of  the  docket,  and 
argued  orally  in  behalf  of  only  one  of  the  parties,  no  printed  argument  for  the 
opposite  party  will  be  received,  unless  it  is  filed  before  the  oral  argument  begins, 
and  the  court  will  proceed  to  consider  and  decide  the  case  upon  the  ex  parte. 
argument."4 

"  No  brief  or  argument  will  be  received  either  through  the  clerk  or  otherwise, 
after  a  case  has  been  argued  or  submitted,  except  upon  leave  granted  in  open 
court  after  notice  to  opposing  counsel."5 

§  31.  Must  be  served. 

"  No  brief  or  printed  argument,  required  by  the  foregoing  sections,  shall  be 
filed  by  the  clerk  unless  the  same  shall  be  accompanied  by  satisfactory  proof  of 
service  upon  counsel  for  the  adverse  party."6 

§  32.  Motions  in  Supreme  Court. 

(a)  "All  motions  to  the  court  shall  be  reduced  to  writing,  and  shall  contain 
a  brief  statement  of  the  facts  and  objects  of  the  motion."  1 

(b)  "The  court  will  not  hear  arguments  on  Saturday  (unless  for  special  cause 
it  shall  order  to  the  contrary),  but  will  devote  that  day  to  the  other  business  of 
the  court.  The  motion  day  shall  be  Monday  of  each  week;  and  motions  not 
required  by  the  rules  of  the  court  to  be  put  on  the  docket  shall  be  entitled  to 
preference  immediately  after  the  reading  of  opinions,  if  such  motions  shall  be 


1  §  5,  Rule  5.  9  Sec.  1,  Rule  20,  U.  S.  Supreme  Court. 

s  Sec.  2,  Rule  20.  «  Sec.  3,  Rule  20,  U.  S.  Supreme  Court. 

s  Sect.  4,  Rule  20,  U.  S.  Supreme  Court. 

6  §  7,  Rule  20,  U.  S.  Supreme  Court. 

1  §  1  of  Rule  6,  of  the  Supreme  Court  of  U.  S. 

(270) 


Ch.  XIX)  PROCEDURE  IN   THE  APPELLATE  COURTS  §§  33-34 

made  before  the  court  shall  have  entered  upon  the  hearing  of  a  case  upon  the 
docket."1 

(c)  "Forty-five  minutes  on  each  side  shall  be  allowed  to  the  argument  of  a 
motion,  and  no  more,  without  special  leave  of  the  court,  granted  before  the 
argument  begins."3 

(d)  "All  motions  (in  admiralty  appeals)  shall  be  made  upon  at  least  four 
days'  notice. "3 

§  33.  Motions  in  Circuit  Court  of  Appeals. 

"  (1)  All  motions  to  the  court  shall  be  reduced  to  writing,  and  shall  contain 
a  brief  statement  of  the  facts  and  objects  of  the  motion. 

"(2)  One  hour  on  each  side  (one-half  hour  in  the  Second  and  Seventh  Cir- 
cuits) shall  be  allowed  to  the  argument  of  a  motion,  and  no  more,  without 
special  leave  of  the  court,  granted  before  the  argument  begins. 

"  (3)  No  motion  to  dismiss,  except  on  special  assignment  by  the  court,  shall 
be  heard,  unless  previous  notice  has  been  given  to  the  adverse  party,  or  the 
counsel  or  attorney  of  such  party."* 

§  34.  Motions  to  dismiss  or  affirm.     General  practice  in  Supreme 
Court. 

The  practice  in  the  Supreme  Court  of  the  United  States  in 
recent  years  has  been  to  move  or  dismiss  a  cause  for  want  of 
jurisdiction  and  to  join  in  it  a  request  to  affirm  the  judgment  on 
the  ground  that  the  appeal  is  utterly  devoid  of  merit  or  that  the 
points  raised  are  foreclosed  by  prior  decisions  of  the  court.5 

The  Circuit  Courts  of  Appeal  as  a  rule  are  not  in  favor  of  dis- 
missing appeals  without  consideration  of  the  merits,  except  where 
the  ground  alleged  is  fatal  to  the  jurisdiction  of  the  court.6 

These  motions  are  heard  on  briefs  only. 7 

1  §  7,  Rule  6  of  the  Supreme  Court  of  U.  S. 

2  §  2  of  Rule  6  of  the  U.  S.  Supreme  Court. 

3  Admiralty  Rule  XI. 

<  Rule  XXI.  C.  C.  A.  Second  Circuit. 

s  U.  S.  v.  Hamburg  American  Line,  239  U.  S.  466,  36  Sup.  Ct.  Rep.  212,  60  L. 
Ed.  387,  484;  St.  Louis  &  San  Francisco  R.  R.  Co.  v.  Shepherd,  240  U.  S.  240,  36 
Sup.  Ct.  Rep.  274,  60  L.  Ed.  622;  City  of  New  Orleans  v.  Louisiana  Const.  Co., 
129  U.  S.  45,  9  Sup.  Ct.  Rep.  223,  32  L.  Ed.  607. 

6  Halfpenny  v.  Miller,  232  Fed.  113  (C.  C.  A.). 

7  See  per  curiam  opinion,  141  U.  S.  212. 

(271) 


Cll.  XIX)  PROCEDURE  IN  THE  APPELLATE  COURTS  §§  35-38 

A  great  percentage  of  these  motions  has  been  sustained.1 
For  form  of  motion  to  dismiss  and  suggestions  in  support 

thereof,  see  Appendix. 

§  35.  The  Rule. 

"All  motions  to  dismiss  writs  of  error  and  appeals,  except  motions  to  docket 
and  dismiss  under  Rule  9,  must  be  submitted  in  the  first  instance  on  printed 
briefs  or  arguments.  If  the  court  desires  further  argument  on  that  subject,  it 
will  be  ordered  in  connection  with  the  hearing  on  the  merits.  The  party  moving 
to  dismiss  shall  serve  notice  of  the  motion,  with  a  copy  of  his  brief  of  argument, 
on  the  counsel  for  plaintiff  in  error  or  appellant  of  record  in  this  court,  at  least 
three  weeks  before  the  time  fixed  for  submitting  the  motion,  in  all  cases  except 
where  the  counsel  to  be  notified  resides  west  of  the  Rocky  Mountains,  in  which 
case  the  notice  shall  be  at  least  thirty  days.  Affidavits  of  the  deposit  in  the 
mail  of  the  notice  and  brief  to  the  proper  address  of  the  counsel  to  be  served, 
duly  post-paid,  as  such  time  as  to  reach  him  by  due  course  of  mail,  the  three 
weeks  or  thirty  days  before  the  time  fixed  by  the  notice,  will  be  regarded  as 
prima  facie  evidence  of  service  on  counsel  who  reside  without  the  District  of 
Columbia.  On  proof  of  such  service,  the  motion  will  be  considered,  unless, 
for  satisfactory  reasons,  further  time  be  given  by  the  court  to  either  party."2 

§  36.  When  appeal  taken  for  delay. 

"The  court  in  any  pending  cause  will  receive  a  motion  to  affirm  on  the  ground 
that  it  is  manifest  that  the  writ  or  appeal  was  taken  for  delay  only,  or  that  the 
questions  on  which  the  decision  of  the  cause  depend  are  so  frivolous  as  not  to 
need  further  argument.  The  same  procedure  shall  apply  to  and  control  such 
motions  as  is  provided  for  in  cases  of  motions  to  dismiss  under  paragraph  4 
of  this  rule.  "3 

§  37.  Notice  necessary. 

No  motion  to  dismiss,  except  on  special  assignment  by  the 
court,  shall  be  heard,  unless  previous  notice  has  been  given  to 
the  adverse  party,  or  the  counsel  or  attorney  of  such  party. 4 
§  38.  Before  record  printed. 

Where  it  appears  from  the  motion  papers  which  are  undis- 

1 U.  S.  v.  Cooke,  238  U.  S.  613,  59  L.  Ed.  1489;  Vaughn  v.  South  Carolina,  238 
U.  S.  613,  59  L.  Ed.  1489;  Welles  v.  Bryant,  238  U.  S.  612,  59  L.  Ed.  14S9;  Clarke  v 
Hamilton,  238  U.  S.  609,  59  L.  Ed.  1487;  Cohen  v.  U.  S.,  238  U.  S.  608, 59  L.  Ed.  1486. 

a§  4  of  Rule  6  of  Supreme  Court  of  U.  S. 

3  §  5  of  Rule  6  of  the  Supreme  Court  of  U.  S. 

*  §  3  of  Rule  6,  of  the  Supreme  Court  of  the  U.  S. 
(272) 


Ch.  XIX)  PROCEDURE  IN   THE  APPELLATE  COURTS  §§  39-43 

puted  that  the  Supreme  Court  is  without  jurisdiction,  the  appeal 
or  writ  of  error  will   be   dismissed   even  before  the   record  is 
printed. r 
§  39.  Foreclosed  by  prior  decisions. 

Motion  to  dismiss  under  Rule  6  will  be  granted  where  the 
question  is  plainly  foreclosed  by  prior  decisions.2 
§  40.  Presumption  against  granting  motion. 

Motions  to  dismiss  appeals  without  consideration  of  the 
merits  should  not  be  granted,  except  when  it  clearly  appears 
that  there  has  been  a  fatal  failure  to  comply  with  legal  require- 
ments.3 

All  doubts  should  be  resolved  in  favor  of  retaining  an  appeal 
for  decision  on  the  merits.4 
§  41.  Lack  of  jurisdiction  apparent. 

When  absence  of  jurisdiction  is  apparent  on  the  record,  it  is 
the  duty  of  the  appellate  tribunal  to  dismiss  the  appeal  or  writ 
of  error,  even  if  the  defendant  did  not  raise  the  question  in  either 
court. s 
§  42.  Time  for  filing  record — Motion  to  dismiss. 

A  motion  to  dismiss  for  failure  to  file  bill  of  exceptions,  cita- 
tion, and  bond,  must  be  made  promptly.     When  the  parties  have 
entered  into  a  stipulation  as  to  the  time  for  filing  of  the  record 
the  motion  cannot  be  sustained. 6 
§  43.  Placing  a  cause  on  summary  docket. 

"6.  Although  the  court  upon  consideration  of  a  motion  to  dismiss  or  a  motion 
to  affirm  may  refuse  to  grant  the  motion,  it  may  nevertheless,  if  the  conclusion  is 
arrived  at  that  the  case  is  of  such  a  character  as  not  to  justify  extended  argu- 


1  Lazarus  v.  Prentice,  234  U.  S.  263,  34  Sup.  Ct.  Rep.  851,  58  L.  Ed.  1305;  St. 
Louis  Natl.  Bank  v.  United  States  Ins.  Co.,  100  U.  S.  43, 25  L.  Ed.  547;  Wetmore  v. 
Rymer,  169  U.  S.  115,  8  Sup.  Ct.  Rep.  293,  42  L.  Ed.  682. 

2  Wingert  v.  First  National  Bank,  223  U.  S.  670,  32  Sup.  Ct.  Rep.  391,  56 
L.  Ed.  605. 

3  Halfpenny  v.  Miller  (C.  C.  A.  4th  Cir.),  232  Fed.  113. 

4  Halfpenny  v.  Miller  (C.  C.  A.  4th  Cir.),  232  Fed.  113. 

s  Wayman-Britton  Co.  v.  Ladd,  231  Fed.  901  (C.  C.  A.  8th  Cir.). 

6  Fisher  Hydraulic  Stone  &  Mch.  Co.  v.  Warner  (C.  C.  A.  2d  Cir.),  233  Fed.  527. 

is  (273) 


'Ch.  XIX)  PROCEDURE  IN   THE   APPELLATE  COURTS  §§  44-15 

ment,  order  the  cause  transferred  for  hearing  to  a  summary  docket.  The  hear- 
ing of  the  causes  on  such  docket  will  be  expedited,  the  court  providing  from  time 
to  time  for  such  speedy  disposition  of  the  docket  as  the  regular  order  of  business 
may  permit,  and  on  the  hearing  of  such  causes  one-half  hour  will  be  allowed 
each  side  for  oral  argument."1 

§  44.  Dismissal  by  consent  or  by  appellant. 

An  appellant  cannot  as  of  right  dismiss  his  own  appeal.  The 
court  usually  will  not  allow  such  a  dismissal  if  appellant  intends 
at  some  future  time  to  take  another  appeal.  Therefore,  ordina- 
rily on  the  dismissal  of  his  motion,  appellant  is  not  entitled  to 
an  order  expressed  without  prejudice. 2 

Case  will  be  dismissed  where  same  was  compromised  and  a 
stipulation  entered  into  by  the  parties  that  the  suit  shall  be 
dismissed,  unless  plaintiff  in  error  shows  cause  to  the  contrary 
within  the  time  fixed  by  the  court  for  that  purpose. 3 

"Whenever  the  plaintiff  and  defendant  in  a  writ  of  error  pending  in  this  court, 
or  the  appellant  and  appellee  in  an  appeal,  shall  in  vacation,  by  their  attorneys 
of  record,  sign  and  file  with  the  clerk  an  agreement  in  writing  directing  the  case 
to  be  dismissed,  and  specifying  the  terms  on  which  it  is  to  be  dismissed  as  to 
costs,  and  shall  pay  to  the  clerk  any  fees  that  may  be  due  to  him,  it  shall  be  the 
duty  of  the  clerk  to  enter  the  case  dismissed,  and  to  give  to  either  party  request- 
ing it  a  copy  of  the  agreement  filed;  but  no  mandate  or  other  process  shall  issue 
without  an  order  of  the  court.  "4 

§  45.  Precedence.    Advancing  causes  on  motion. 

"Cases  once  adjudicated  by  this  court  upon  the  merits,  and  again  brought 
up  by  writ  of  error  or  appeal,  may  be  advanced  by  leave  of  the  court  on  motion 
of  either  party. 

"Revenue  and  other  cases  in  which  the  United  States  are  concerned,  which 
also  involve  or  affect  some  matter  of  general  public  interest,  or  which  may  be 
entitled  to  precedence  under  the  provisions  of  any  act  of  Congress,  may  also 
by  leave  of  the  court  be  advanced  on  motion  of  the  Attorney-General. 


1  §  6  of  Rule  6  of  Supreme  Court  of  U.  S. 

3  Donallan  v.  Tannage  Patent  Co.,  79  Fed.  385,  24  C.  C.  A.  647;  U.  S.  v.  Minne- 
sota &  N.  W.  R.  Co.,  18  How.  241,  242,  15  L.  Ed.  347;  U.  S.  v.  Griffith,  141  U.  S. 
212,  11  Sup.  Ct.  Rep.  1005,  35  L.  Ed.  595;  Halfpenny  v.  Miller,  232  Fed.  113. 

3  Addington  v.  Adams,  125  U.  S.  693,  8  Sup.  Ct.  Rep.  1391,  31  L.  Ed.  853. 

«  Rule  28,  U.  S.  Supreme  Court. 

(274) 


Ch.  XIX)  PROCEDURE  IN  THE  APPELLATE  COURTS  §§  46-47 

"Criminal  cases  may  be  advanced  by  leave  of  the  court  on  motion  of  either 
party. 

"All  motions  to  advance  cases  must  be  printed,  and  must  contain  a  brief 
statement  of  the  matter  involved,  with  the  reasons  for  the  application. 

"  No  other  case  will  be  taken  up  out  of  the  order  on  the  docket,  or  be  set  down 
for  any  particular  day,  except  under  special  and  peculiar  circumstances  to  be 
shown  to  the  court."1 

"Cases  on  writ  of  error  to  revise  the  judgment  of  a  State  court  in  any  criminal 
case  shall  have  precedence  on  the  docket  of  the  Supreme  Court,  of  all  cases  to 
which  the  Government  of  the  United  States  is  not  a  party,  excepting  only 
such  cases  as  the  court,  in  its  discretion,  may  decide  to  be  of  public 
importance."' 

Under  Rule  32  of  the  Rules  of  Practice  of  the  Supreme  Court 
of  the  United  States,  cases  brought  to  the  Supreme  Court  by 
writ  of  error  or  appeal,  where  the  only  question  in  issue  is  the 
question  of  the  jurisdiction  of  the  court  below,  will  be  advanced 
on  motion,  and  heard  under  the  rules  prescribed  by  Rule  6,  in 
regard  to  motions,  writs  of  error  and  appeals. 
§  46.  Advancing  habeas  corpus  case. 

When  a  writ  of  habeas  corpus   is  issued   the  cause  will  be 
advanced  in  the  United  States  Supreme  Court. 3 
§  47.  Use  of  law  library. 

"1.  During  the  session  of  the  court,  any  gentleman  of  the  bar  having  a  case 
on  the  docket,  and  wishing  to  use  any  book  or  books  in  the  law  library,  shall  be 
at  liberty,  upon  application  to  the  clerk  of  the  court,  to  receive  an  order  to  take 
the  same  (not  exceeding  at  any  one  time  three)  from  the  library,  he  being  thereby 
responsible  for  the  due  return  of  the  same  within  a  reasonable  time,  or  when 
required  by  the  clerk.  And  in  case  the  same  shall  not  be  so  returned,  the  party 
receiving  the  same  shall  be  responsible  for  and  forfeit  and  pay  twice  the  value 
thereof,  and  also  one  dollar  per  day  for  each  day's  detention  beyond  the  limited 
time. 

"2.  The  clerk  shall  deposit  in  the  law  library,  to  be  there  carefully  pre- 
served, one  copy  of  the  printed  record  in  every  case  submitted  to  the  court  for 
its  consideration,  and  of  all  printed  motions,  briefs,  or  arguments  filed  therein. 


1  Rule  26,  U.  S.  Supreme  Court. 

a36  Stat.  L.  1160.     This  section  is  a  reenactment,  without  change,  of  R.  S., 
Sec.  710,  4  Fed.  Stat.  Annot.  490. 

3  Storti  v.  Mass.,  183  U.  S.  138,  22  Sup.  Ct.  Rep.  72,  46  L.  Ed.  120;  Ex  parte 
Gytl,  210  Fed.  918. 

(275) 


Ch.  XIX)  PROCEDURE  IN  TIIE   APPELLATE  COURTS  §§  48-50 

"3.  The  marshal  shall  take  charge  of  the  books  of  the  court,  together  with 
such  of  the  duplicate  law  books  as  Congress  may  direct  to  be  transferred  to  the 
court,  and  arrange  them  in  the  conference  room,  which  he  shall  have  fitted  up 
in  a  proper  manner;  and  he  shall  not  permit  such  books  to  be  taken  therefrom 
by  any  one  except  the  justices  of  the  court."1 

§  48.  Hearing  of  the  cause. 

"1.  The  court,  on  the  second  day  in  each  term,  will  commence  calling  the 
cases  for  argument  in  the  order  in  which  they  stand  on  the  docket,  and  proceed 
from  day  to  day  during  the  term  in  the  same  order  (except  as  hereinafter  pro- 
vided); and  if  the  parties,  or  either  of  them,  shall  be  ready  when  the  case  is 
called,  the  same  will  be  heard ;  and  if  neither  party  shall  be  ready  to  proceed  in 
the  argument,  the  case  shall  be  continued  to  the  next  term  of  the  court  unless 
some  good  and  satisfactory  reason  to  the  contrary  shall  be  shown  to  the  court. 

"2.  Ten  cases  only  shall  be  considered  as  liable  to  be  called  on  each  day 
during  the  term.  But  on  the  coming  in  of  the  court  on  each  day  the  entire 
number  of  such  ten  cases  will  be  called,  with  a  view  to  the  disposition  of  such 
of  them  as  are  not  to  be  argued."8 

"The  court  will,  at  every  term,  announce  on  what  day  it  will  adjourn  at 
least  ten  days  before  the  time  which  shall  be  fixed  upon,  and  the  court  will  take 
up  no  case  for  argument,  nor  receive  any  case  upon  printed  briefs,  within  three 
days  next  before  the  day  fixed  upon  for  adjournment."3 

§  49.  Consolidation  of  actions  for  hearing. 

The  Supreme  Court  may  of  its  own  motion  or  on  motion 
of  a  party  consolidate  for  hearing  causes  of  a  like  nature  or 
relative  to  the  same  questions,  where  it  appears  reasonable  to 
do  so. 4 

"Two  or  more  cases,  involving  the  same  question,  may,  by  the  leave  of  the 
court  be  heard  together,  but  they  must  be  argued  as  one  case."* 

§  50.  Passing  and  reinstating  cause. 

"  If,  after  a  case  has  been  passed,  the  parties  shall  desire  to  have  it  heard,  they 
may  file  with  the  clerk  their  joint  request  to  that  effect,  and  the  case  shall  then 
be  by  him  reinstated  for  call  ten  cases  after  that  under  argument,  or  next  to 


1  Rule  7,  U.  S.  Supreme  Court.  a  Rule  26,  U.  S.  Supreme  Court. 

3  Rule  27,  U.  S.  Supreme  Court. 

4j£tna  Ins.  Co.  v.  Moore,  231  U.  S.  543,  34  Sup.  Ct.  Rep.  186,  58  L.  Ed.  356; 
U.  S.  v.  Terminal  R.  R.  Ass'n,  236  U.  S.  194,  35  Sup.  Ct.  Rep.  408,  59  L.  Ed.  535. 
s  §  8,  Rule  26,  U.  S.  Supreme  Court. 

(27C) 


Ch.  XIX)  PROCEDURE  IN   THE  APPELLATE  COURTS  §§  51-52 

be  called  at  the  end  of  the  day  the  request  is  filed.  If  the  parties  will  not  unite 
in  such  a  request,  either  may  move  to  take  up  the  case,  and  it  shall  then  be 
assigned  to  such  place  upon  the  docket  as  the  court  may  direct."1 

"No  stipulation  to  pass  a  case  will  be  recognized  as  binding  upon  the  court. 
A  case  can  only  be  so  passed  upon  application  made  and  leave  granted  in  open 
court."* 

§  51.  Oral  arguments. 

"1.  The  plaintiff  in  error  or  appellant  in  this  court  shall  be  entitled  to 
open  and  conclude  the  argument  of  the  case.  But  when  there  are  cross-appeals 
they  shall  be  argued  together  as  one  case,  and  the  plaintiff  in  the  court  below 
shall  be  entitled  to  open  and  conclude  the  argument. 

"2.     Only  two  counsel  will  be  heard  for  each  party  on  the  argument  of  a  case. 

"3.  One  and  one-half  hours  on  each  side  will  be  allowed  for  the  argument, 
and  no  more,  without  special  leave  of  the  court,  granted  before  the  argument 
begins.  But  in  cases  certified  from  the  Circuit  Courts  of  Appeals,  cases  involv- 
ing solely  the  jurisdiction  of  the  court  below,  and  cases  under  the  Act  of  March 
2,  1907,  34  Stat.,  1246,  forty-five  minutes  only  on  each  side  will  be  allowed  for 
the  argument  unless  the  time  be  extended.  The  time  thus  allowed  may  be 
apportioned  between  the  counsel  on  the  same  side,  at  their  discretion ;  provided, 
always,  that  a  fair  opening  of  the  case  shall  be  made  by  the  party  having  the 
opening  and  closing  arguments. "J 

"6.  When  no  oral  argument  is  made  for  one  of  the  parties,  only  one  counsel 
will  be  heard  for  the  adverse  party.  "4 

§  52.  Effect  of  failure  to  appear  or  file  brief. 

(a)  "Where  no  counsel  appears  and  no  brief  has  been  filed  for  the  plaintiff 
in  error  or  appellant,  when  the  case  is  called  for  trial,  the  defendant  in  error  or 
appellee  may  have  the  plaintiff  in  error  or  appellant  called  and  the  writ  of  error 
or  appeal  dismissed,  or  may  open  the  record  and  pray  for  an  affirmance."5 

(b)  "Where  the  defendant  in  error  or  appellee  fails  to  appear  when  the  case 
is  called  for  trial,  the  court  may  proceed  to  hear  an  argument  on  the  part  of  the 
plaintiff  in  error  or  appellant  and  to  give  judgment  according  to  the  right  of 
the  case."6 

(c)  "When  a  case  is  reached  in  the  regular  call  of  the  docket,  and  there  is 
no  appearance  for  either  party,  the  case  shall  be  dismissed  at  the  cost  of  the 
plaintiff  in  error  or  appellant."7 

(d)  "When  a  case  is  called  for  argument  at  two  successive  terms,  and  upon 


1  §  9,  Rule  26,  U.  S.  Supreme  Court.  9  §  10,  Rule  26,  U.  S.  Supreme  Court. 

3  Rule  22,  U.  S.  Supreme  Court.  *  Rule  21,  U.  S.  Supreme  Court. 

s  Rule  16,  U.  S.  Supreme  Court.  6  Rule  17,  U.  S.  Supreme  Court. 
1  Rule  18,  U.  S.  Supreme  Court. 

(277) 


Ch.  XIX)  PROCEDURE  IN  THE  APPELLATE  COURTS  §§  53-56 

the  call  at  the  second  term  neither  party  is  prepared  to  argue  it,  it  shall  be 
dismissed  at  the  cost  of  the  plaintiff  in  error  or  appellant,  unless  sufficient  cause 
is  shown  for  further  postponement."1 

§  53.  Rehearing.     Time  for  petition. 

"A  petition  for  rehearing  after  judgment  can  be  presented  only  at  the  term 
at  which  judgment  is  entered,  unless  by  special  leave  granted  during  the  term; 
and  must  be  printed  and  briefly  and  distinctly  state  its  grounds,  and  be  supported 
by  certificate  of  counsel;  and  will  not  be  granted,  or  permitted  to  be  argued, 
unless  a  justice  who  concurred  in  the  judgment  desires  it  and  a  majority  of  the  court 
so  determines."2 

Rehearing  will  not  be  entertained  after  term.3 
§  54.  Effect  of  order  staying  mandate. 

An  order  staying  a  mandate  retains  the  jurisdiction  of  the 
appellate  tribunal  for  the  purposes  of  a  rehearing.4 
§  53.  In  criminal  cases — Rehearing  by  Government. 

The  government   may  petition  for  rehearing   in   a  criminal 
case  where  the  judgment  of  conviction  is  reversed. s 

Although  generally  the  government  cannot  appeal  or  sue  out 
a  writ  of  error  from  judgments  of  acquittal. 6 
§  56.  Interest. 

(a)  "In  cases  where  a  writ  of  error  is  prosecuted  to  this  court,  and  the  judg- 
ment of  the  inferior  court  is  affirmed,  the  interest  shall  be  calculated  and  levied, 
from  the  date  of  the  judgment  below  until  the  same  is  paid,  at  the  same  rate 
that  similar  judgments  bear  interest  in  the  courts  of  the  State  where  such 
judgment  is  rendered. "» 


1  Rule  19,  U.  S.  Supreme  Court. 

3  Rule  30,  U.  S.  Supreme  Court.  (Rule  29  of  the  Court  of  Appeals  is  identical 
with  the  above.) 

J  Omaha  Elect.  L.  &  P.  Co.  v.  City  or  Omaha,  216  Fed.  848;  Bushnell  v.  Crooke 
Mining  &  Smelting  Co.,  150  U.  S.  82,  14  Sup.  Ct.  Rep.  2,  37  L.  Ed.  1007,  63  Fed. 
182,  68  Fed.  837. 

4  Burgel  v.  Robinson,  123  Fed.  262,  59  C.  C.  A.  260;  Omaha  Elect.  Light  & 
Power  Co.  v.  City  of  Omaha,  216  Fed.  850. 

sRyan  v.  U.  S.,  216  Fed.  (C.  C.  A.);  Mitchell  v.  U.  S.  (C.  C.  A.  9th  Cir.),  197 
Fed.  15;  Drake  v.  State,  29  Tex.  App.  265,  15  S.  W.  725;  State  v.  Jones,  64  la.  849. 

«  Ex  parte  Jim  Hong,  211  Fed.  73;  U.  S.  v.  Langes,  144  U.  S.  310,  12  Sup.  Ct. 
Rep.  609,  36  L.  Ed.  445. 

7  §  1,  Rule  23,  U.  S.  Supreme  Court. 

(278) 


Ch.  XIX)  PROCEDURE  IN  THE  APPELLATE  COURTS  §§  57~58 

(b)  "  The  same  rule  shall  be  applied  to  decrees  for  the  payment  of  money  in 
cases  in  equity,  unless  otherwise  ordered  by  this  court."1 

(c)  "In  cases  in  admiralty,  damages  and  interest  may  be  allowed  if  specially 
directed  by  the  court." 

Clause  4,  Supreme  Court  Rule  23,  as  amended  March  10, 
1890,  and  of  C.  C.  A.  Rule  30,  in  all  circuits,  except  the  7th  Circuit. 
§  57.  Costs. 

(a)  "In  all  cases  where  any  suit  shall  be  dismissed  in  this  court,  costs  shall 
be  allowed  to  the  defendant  in  error  or  appellee,  unless  otherwise  agreed  by  the 
parties,  except  where  the  dismissal  shall  be  for  want  of  jurisdiction,  when  the 
cost  incident  to  the  motion  to  dismiss  shall  be  allowed."3 

Where  a  suit  is  dismissed  for  want  of  jurisdiction,  the  court 
below  has  no  power  to  award  costs  to  the  defendants.3 

(b)  "In  all  cases  of  affirmance  of  any  judgment  or  decree  in  this  court,  costs 
shall  be  allowed  to  the  defendant  in  error  or  appellee,  unless  otherwise  ordered 
by  the  court. 

(c)  "In  cases  of  reversal  of  any  judgment  or  decree  in  this  court,  costs  shall 
be  allowed  to  the  plaintiff  in  error  or  appellant,  unless  otherwise  ordered  by  the 
court.  The  cost  of  the  transcript  of  the  record  from  the  court  below  shall  be 
a  part  of  such  costs,  and  be  taxable  in  that  court  as  costs  in  the  case." 

(d)  "  Neither  of  the  foregoing  sections  shall  apply  to  cases  where  the  United 
States  are  a  party;  but  in  such  cases  no  costs  shall  be  allowed  in  this  court  for 
or  against  the  United  States. 

(e)  "When  costs  are  allowed  in  this  court,  it  shall  be  the  duty  of  the  clerk 
to  insert  the  amount  thereof  in  the  body  of  the  mandate,  or  other  proper  process, 
sent  to  the  court  below,  and  annex  to  the  same  the  bill  of  items  taxed  in  detail.  "4 

(f)  "The  provisions  of  Rules  23  and  24  of  this  court,  in  regard  to  interest 
and  costs  and  fees,  shall  apply  to  writs  of  error  and  appeals  and  reviews  under 
the  provisions  of  Sections  238,  239,  240,  and  241  of  the  act  entitled  'An  act  to 
codify,  revise,  and  amend  the  laws  relating  to  the  judiciary,'  approved  March 
3,  1911,  Chapter  231. "s 

§  58.  Damages  for  delay  on  affirmance  in  error. 

"Where,  upon  a  writ  of  error,  judgment  is  affirmed  in  the  Supreme  Court  or 
a  Circuit  Court,  the  court  shall  adjudge  to  the  respondents  in  error  just  damages 
for  his  delay,  and  single  or  double  costs,  at  its  discretion."6 


1  §  3,  Rule  23,  U.  S.  Supreme  Court.  '  §  1,  Rule  24,  U.  S.  Supreme  Court. 

i  Weyman-Bruton  Co.  v.  Ladd  (C.  C.  A.  8th  Cir.),  231  Fed.  898. 
4  Rule  24,  U.  S.  Supreme  Court.  s  Rule  38,  U.  S.  Supreme  Court. 

6  Rev.  Stats.,  Sec.  1010. 

(279) 


Ch.  XIX)  PROCEDURE   IN   THE   APPELLATE   COURTS  §§  59-60 

"In  all  cases  where  a  writ  of  error  shall  delay  the  proceedings  on  the  judgment 
of  the  inferior  court,  and  shall  appear  to  have  been  sued  out  merely  for  delay, 
damages  at  a  rate  not  exceeding  10  per  cent.,  in  addition  to  interest,  shall  be 
awarded  upon  the  amount  of  the  judgment."1 

Where  on  appeal  from  a  judgment  in  a  negligence  action, 
the  Circuit  Court  of  Appeals  affirmed  the  judgment  and  then  a 
further  appeal  is  taken  to  the  Supreme  Court  and  no  substantial 
question  of  law  is  raised,  the  Supreme  Court  has  power  to  affirm 
the  judgment  and  add  thereto  10%  damages. 2 
§  59*  Opinions  and  mandates.     Opinions  of  the  court. 

"1.  All  opinions  delivered  by  the  court,  shall  immediately  upon  the  delivery 
thereof,  be  handed  to  the  clerk  to  be  printed.  And  it  shall  be  the  duty  of  the 
clerk  to  cause  the  same  to  be  forthwith  printed,  and  to  deliver  a  copy  to  the 
reporter  as  soon  as  the  same  shall  be  printed. 

"2.  The  original  opinions  of  the  court  shall  be  filed  with  the  clerk  of  this 
court  for  preservation. 

"3.  Opinions  printed  under  the  supervision  of  the  justices  delivering  the 
same  need  not  be  copied  by  the  clerk  into  a  book  of  records;  but  at  the  end  of 
each  term  the  clerk  shall  cause  such  printed  opinions  to  be  bound  in  a  substan- 
tial manner  into  one  or  more  volumes,  and  when  so  bound  they  shall  be  deemed 
to  have  been  recorded."3 

§  6o.  When  mandates  issue. 

"Mandates  shall  issue  as  of  course  after  the  expiration  of  thirty  days  from  the 
day  the  judgment  or  decree  is  entered,  unless  the  time  is  enlarged  by  order  of 
the  court,  or  of  a  justice  thereof  when  the  court  is  not  in  session,  but  during 
the  term."'' 

"In  all  cases  finally  determined  by  this  Court,  a  mandate  or  other  proper 
process  in  the  nature  of  procedendo  shall  be  issued,  on  the  order  of  this  Court, 
to  the  Court  below,  for  the  purpose  of  informing  such  Court  of  the  proceedings 
in  this  Court  so  that  further  proceedings  may  be  had  in  such  Court  as  to  law 
and  justice  may  appertain."5 


1  §  2  of  Rule  23  of  the  Supreme  Court. 

3  Texas  &  Pacific  R.  R.  Co.  v.  Prater,  229  U.  S.  177,  33  Sup.  Ct.  Rep.  637,  57 
Ed.  1139;  Gibbs  v.  Diekma,  102  U.  S.  410,  26  L.  Ed.  177. 

s  Rule  25,  U.  S.  Supreme  Court. 

4  Rule  39,  U.  S.  Supreme  Court. 

s  Rule  32  of  the  U.  S.  Circuit  Court  of  Appeals,  for  2d  Circuit. 

(280) 


Ch.  XIX)     PROCEDURE  IN  THE  APPELLATE  COURTS  §  61 

In  the  Second  Circuit  there  is  also  an  admiralty  rule  as  to 
mandate. 

"The  decrees  of  this  court  shall  direct  that  a  mandate  issue  to  the  court 
below."1 

"  In  all  cases  of  the  dismissal  of  any  suit  in  this  court,  it  shall  be  the  duty  of 
the  clerk  to  issue  a  mandate,  or  other  proper  process,  in  the  nature  of  a  proce- 
dendo, to  the  court  below,  for  the  purpose  of  informing  such  court  of  the  pro- 
ceedings in  this  court,  so  that  further  proceedings  may  be  had  in  such  court  as 
to  law  and  justice  may  appertain."3 

§  61.  Recalling  mandate. 

After  the  decision  on  appeal  and  the  remanding  of  the  case 
to  the  trial  court,  a  bill  of  review  may  be  filed  on  the  ground  of 
newly  discovered  evidence.  In  order  to  prevent  a  conflict  of 
jurisdiction,  however,  it  is  necessary  to  first  obtain  the  consent 
of  the  appellate  court  whose  judgment  is  to  reviewed.3 

In  such  a  case,  the  decree  sought  to  be  set  aside  by  the  bill 
of  review,  in  the  court  below,  is  entered  in  pursuance  of  the  man- 
date of  the  appellate  court.  It  is  therefore  the  decree  of  that 
court,  and  not  that  primarily  entered  by  the  court  below,  that 
is  sought  to  be  interfered  with. 4 

In  making  application  for  bill  of  review,  leave  must  first  be 
obtained  from  the  appellate  tribunal.  After  leave  has  been 
obtained  and  the  court  below  proceeds  to  correct  the  judgment 
or  decree,  the  party  who  feels  aggrieved  at  such  amendment  or 
correction  may  appeal,  and  the  appellate  court  then  has  jurisdic- 
tion to  make  any  further  corrections  or  amendments. 5 

It  is  discretionary  with  the  appellate  court  to  allow  the  peti- 

1  Admiralty  Rule  XVI. 

a  §  5,  Rule  24,  U.  S.  Supreme  Court. 

s  Wagner  v.  Meccans,  235  Fed.  890  (C.  C.  A.);  Keith  v.  Alger,  124  Fed.  32,  59 
C.  C.  A.  552;  Omaha  Elect.  L.  &  P.  Co.  v.  City  of  Omaha,  216  Fed.  84S. 

4  Keith  v.  Alger,  124  Fed.  32,  59  C.  C.  A.  552;  Southard  v.  Russel,  16  How. 
547,  14  L.  Ed.  1052;  Omaha  Elect.  L.  &  P.  Co.  v.  City  of  Omaha,  supra;  In  re 
Brown,  213  Fed.  701. 

s  Wagner  v.  Meccans,  supra,  and  cases  cited;  Castell  v.  Faber,  166  Fed.  281  (C. 
C.A.). 

(281) 


Ch.  XIX)     PROCEDURE  IN  THE  APPELLATE  COURTS  §  02 

tion,  and  the  rule  generally  followed  is:  If,  upon  the  case  made, 
the  court  is  of  the  opinion  that  the  decree  which  it  has  directed 
to  be  entered  in  the  District  Court  ought  to  be  reopened  and 
reviewed  in  that  court,  the  appellate  court  will  release  the  lower 
court  from  its  obligation  to  observe  the  mandate  to  the  extent 
of  allowing  it  to  entertain  the  application  and  decide  upon  the 
merits,  but  not  otherwise.  The  decree  entered  upon  direction 
of  the  appellate  court,  though  in  form  it  is  the  decree  of  the  lower 
court,  yet  it  is  in  substance  its  own  decree,  and  it  ought  not  for 
light  reasons  allow  it  to  be  disturbed.  The  petition  for  leave 
should  therefore  be  addressed  to  the  appellate  court  in  order 
that  it  may  consider  it  fully. z 

The  district  court  or  court  of  original  jurisdiction  has  no 
jurisdiction  to  entertain  or  pass  upon  the  petition  for  leave  to 
file  a  bill  of  review.2 

After  a  mandate  has  come  down  and  has  been  filed  in  the 
court  below  an  application  to  amend  the  record,  not  because  of 
clerical  errors  or  some  other  mistake  in  the  record,  but  for  affirma- 
tive relief,  such  motion  will  not  be  granted.  The  Supreme  Court 
of  the  United  States  affirmed  such  action  of  the  court  saying 
that  it  knew  of  no  precedent  for  such  action. 3 
§  62.  Power  of  court  to  amend  its  own  judgments. 

A  court  may  possibly  not  have  the  power  to  alter  or  vacate 
its  own  judgments  truly  recorded,  after  the  term  in  which  it  was 
entered.  But  that  any  misprision,  omission,  or  mistake  of  the 
clerk  may  be  amended  at  any  time,  where  the  record  shows  any- 
thing to  amend  by,  has  never  been  doubted  since  the  statute  of 
1  Edward  III.,  C.  6.  It  is  a  power  vested  in  every  court,  and 
one  which  it  is  their  duty  to  exercise  in  a  proper  case.     It  is  a 

1  Wagner  v.  Meccans,  supra;  Novelty  Tufting  Mach.  Co.  v.  Buser,  158  Fed.  83 
(C.  C.  A.);  Sheeler  v.  Alexander,  211  Fed.  544. 

'  In  re  Gamewell  Fire  Alarm  Tel.  Co.,  73  Fed.  908  (C.  C.  A.);  Sheeler  v.  Alex- 
ander, 211  Fed.  544. 

3  Hickman  v.  Fort  Scott,  141  U.  S.  415,  12  Sup.  Ct.  Rep.  9,  35  L.  Ed.  775;  In 
re  National  Tel.  Co.,  230  Fed.  785. 

(282) 


Ch.  XIX)  PROCEDURE  IN  THE  APPELLATE  COURTS  §§  63~64 

power  committed  to  the  discretion  of  the  court,  to  be  exercised 
over  their  own  records,  and  the  correct  use  of  that  discretion 
cannot  be  questioned  by  another  court,  even  on  a  writ  of  error. r 

Likewise  where  fraud  or  the  like  has  been  perpetrated  on  a 
court  of  equity  in  rendering  its  decree  it  may  be  set  aside  after 
term.  During  the  term  it  may  correct  or  amend  or  modify  its  own 
judgment  or  decree, 2  but  after  term  the  Court  loses  jurisdiction. 
§  63.  Bill  of  review  for  errors  of  law  not  entertained. 

A  bill  of  review  will  not  be  for  errors  of  law  alleged  on  the  face 
of  the  decree  after  the  judgment  of  appellate  court.3 
§  64.  General  provisions  —Attorneys  and  Counsellors. 

"1.  It  shall  be  requisite  to  the  admission  of  attorneys  or  counsellors  to 
practice  in  this  court,  that  they  shall  have  been  such  for  three  years  past  in  the 
highest  courts  of  the  States  to  which  they  respectively  belong,  and  that  their 
private  and  professional  characters  shall  appear  to  be  fair. 

"2.  They  shall  respectively  take  and  subscribe  the  following  oath  or  affirma- 
tion, viz. : 

"I, ,  do  solemnly  swear  (or  affirm)  that  I  will  demean  myself, 

as  an  attorney  and  counsellor  of  this  court,  uprightly,  and  according  to  law; 
and  that  I  will  support  the  Constitution  of  the  United  States."4 

"No  clerk  or  assistant  or  deputy  clerk,  of  any  territorial,  district,  or  circuit 
court  of  appeals,  or  of  the  Court  of  Claims,  or  of  the  Supreme  Court  of  the  United 
States,  or  marshal  or  deputy  marshal  of  the  United  States  within  the  district 
for  which  he  is  appointed,  shall  act  as  a  solicitor,  proctor,  attorney,  or  counsel 
in  any  cause  depending  in  any  of  the  said  courts,  or  in  any  district  for  which 
he  is  acting  as  such  officer.  "s 

"Whoever  shall  violate  the  provisions  of  the  preceding  section  shall  be 
stricken  from  the  roll  of  attorneys  by  the  court  upon  complaint,  upon  which 
the  respondent  shall  have  due  notice  and  be  heard  in  his  defense;  and  in  the 


*  Wetmore  v.  Kerrick,  205  U.  S.  141,  153,  51  L.  Ed.  745,  21  Sup.  Ct.  Rep.  434; 
Cromwell  v.  Bank  of  Pittsburgh,  2  Wall.  Jr.  569,  586;  In  re  Wight,  Petitioner,  134 
U.  S.,  136,  10  Sup.  Ct.  Rep.  487,  33  L.  Ed.  865;  In  re  National  Telephone  Co.,  230 
Fed.  785. 

aFeiberg  v.  Warren,  192  Fed.  458  (C.  C.  A.  9th  Cir.);  U.  S.  v.  Mayer,  235  U.  S. 
55;  Doss  v.  Tyack,  et  al.,  14  How.  297,  14  L.  Ed.  428;  Bassett  v.  United  States, 
9  Wall.  38,  19  L.  Ed.  548;  Bronson  v.  Schulten,  104  U.  S.  410,  26  L.  Ed.  797;  Nel- 
son v.  Meehan,  155  Fed.  1,  4;  In  re  National  Telephone  Co.,  supra. 

s  Omaha  Electric  Light  Co.  v.  City  of  Omaha,  216  Fed.  850  (C.  C.  A.) ;  Southard 
v.  Russell,  16  How.  (U.  S.)  547,  14  L.  Ed.  1052. 

4  Rule  2,  U.  S.  Supreme  Court.  s  §  273,  Federal  Judicial  Code. 

(283) 


Ch.  XIX)  PROCEDURE  IN  TIIE  APPELLATE  COURTS  §  65 

case  of  a  marshal  or  deputy  marshal  so  acting,  he  shall  be  recommended  by  the 
court  for  dismissal  from  office."1 

"In  all  the  courts  of  the  United  States  the  parties  may  plead  and  manage 
their  own  causes  personally,  or  by  the  assistance  of  such  counsel  or  attorneys 
at  law  as,  by  the  rules  of  the  said  courts,  respectively,  are  permitted  to  manage 
and  conduct  causes  therein."2 

§  63.  Process. 

"1.  All  process  of  this  court  shall  be  in  the  name  of  the  President  of  the 
United  States,  and  shall  contain  the  Christian  names,  as  well  as  the  surnames, 
of  the  parties. 

"2.  When  process  at  common  law  or  in  equity  shall  issue  against  a  State, 
the  same  shall  be  served  on  the  governor,  or  chief  executive  magistrate,  and 
attorney-general  of  such  State. 

"3.  Process  of  subpoena,  issuing  out  of  this  court,  in  any  suit  in  equity,  shall 
be  served  on  the  defendant  sixty  days  before  the  return  day  of  the  said  process; 
and  if  the  defendant  on  such  service  of  the  subpoena,  shall  not  appear  at  the 
return  day,  the  complainant  shall  be  at  liberty  to  proceed  ex  parte."3 


1  §  274,  Federal  Judicial  Code. 
3  §  272,  Federal  Judicial  Code. 
3  Rule  5,  U.  S.  Supreme  Court. 


THE  END 

For  Federal  Forms  see  Appendix. 


(284) 


APPENDIX 


FEDERAL  FORMS 


(285) 


APPENDIX 


LIST  OF  FORMS 


9- 
10. 


13- 

14. 

IS- 

16. 

17. 

18. 
19. 


20. 
21. 


Petition  for  appeal  in  an  equity  suit. 
Assignment  of  errors. 
Another    form    of    assignment    of 
errors  in  an  equity  suit  involving 
res  adjudicata. 
Petition  for  writ  of  error  in  a  com- 
mon law  civil  action. 
Assignment  of  errors  in  a  common 

law  civil  action. 
Bond  on  appeal  or  writ  of  error. 
Citation  on  appeal  or  writ  of  error 
in  Supreme  Court  to  be  signed  by 
Judge  allowing  the  appeal  or  writ 
of  error.     For  Citation  in  Court 
of  Appeals  use  Form  No.  22. 
Writ  of  error  to  Federal  Courts. 
Form  of  return  of  writ  of  error. 
Contempt.     Petition    for    writ    o* 

error  and  bail. 
Assignment  of  errors  in  Contempt 
Case  for  violation  of  an  injunc- 
tion. 
Petition  for  writ  of  error  in  criminal 

case  for  supersedeas  and  bail. 
Assignment   of   errors  in  criminal 

case. 
Order  allowing  writ  of  error  and 

admitting  defendant  to  bail. 
Bail  bond  on  writ  of  error. 
Common  law — Bill  of  exceptions. 
Forms  on  appeal  in  Habeas  Corpus 

matters.     Deportation  Case. 
Assignment  of  errors — Habeas  Cor- 
pus case. 
Order  allowing  appeal  and  releasing 
prisoner  on  bail  pending  appeal 
in  a  Habeas  Corpus  case. 
Supersedeas  Bail  Bond. 
Appeal   bond   for   costs.     Habeas 

Corpus  case. 
Citation.     Habeas  Corpus  case. 


23.  Certificate  of  District  Judge  certi- 

fying the  question  of  jurisdiction. 

24.  Bankruptcy.     Original  petition  to 

revise. 

25.  Order  granting  leave  to  file  petition 

and  ruling  respondent  to  answer. 

26.  Answer  to  petition  to  revise. 

27.  Petition  on  behalf  of  the  Govern- 

ment for  writ  of  error  with  assign- 
ment of  errors. 

28.  Another    form    of    assignment    of 

errors  by  the  Government  under 
the  Tucker  Act. 

29.  Praecipe  for  record.      Under  Rule 

8  of  the  U.  S.  Supreme  Court  and 
Rule of  Court  of  Appeals. 

30.  Notice  of  filing  praecipe.     Under 

Rule  8  of  the  U.  S.  Supreme  Court. 

3 1 .  Form  for  Designating  other  parts  of 

record. 

32.  Certificate  of  the  clerk  to  the  cor- 

rectness of  the  record  as  per 
praecipe. 

33.  Stipulation  to  omit  certain  parts 

from  printed  record  to  avoid 
duplication. 

34.  Order  for  appearance. 

35.  Notice    designating    part    of    the 

record  under  Rule  10,  Subd.  9,  of 
the  Supreme  Court  of  the  United 
States. 

36.  Designating  part  of  the  record  under 

Rule  10,  Subd.  9,  of  the  Supreme 
Court  of  the  United  States  by 
appellant  or  plaintiff  in  error. 

37.  Designating    part    of    the    record 

under  Rule  io,  Subd.  9,  of  the 
Supreme  Court  of  the  United 
States  by  appellee  or  defendant  in 
error. 

38.  Form  of  certificate  on  motion  to 

(2S7) 


APPENDIX 

docket  and  dismiss  appeal  under  50.     Form  of  certificate  authenticating 

Rule  9  of  Supreme  Court  of  the  record. 

United  States.  51.     Mandate  to  State  Court  on  dismis- 

39.  Order  for  mandate.  sal  for  failure  to  file  transcript 

40.  Mandate  to  Circuit  Court  of  Ap-  of  record  under  Rule  10. 

peals.  52.     Mandate  of  the  Supreme  Court  of 

41.  Mandate  to  District  Court  of  United  the  United  States  to  State  Court. 

States.  53.     Summons  and  severance.     (To  be 

42.  Bill  of  costs.  made  a  part  of  the  record.) 

43.  Petition  for  writ  of  error — Supreme     54.     Mandate  on  order  of  dismissal  for 

Court  to  Highest  Court  of  State.  failure  to  print  transcript  under 

44.  Assignment  of  errors.      (Constitu-  Rule  10  of  the  U.  S.  Supreme 

tional  questions,  etc.)  Court. 

45.  Order  allowing  writ  of  error.  55.     Petition  for  certiorari. 

46.  Bond.  56.     Certificate    of    Court    of    Appeals 

47.  Citation.  certifying  questions  to  the  Su- 

48.  Writ  of  error.  preme  Court  of  U.  S. 

49.  Certificate  of   clerk   of   the  State     57.     Statement  of  the  case  and  questions 

Court  certifying  the  lodgment  of  certified    to  the  Supreme  Court 

certain  documents.  of  the  United  States. 

Form  No.  i 

PETITION  FOR  APPEAL  IN  AN  EQUITY  SUIT 

In  the  District  Court  of  the  United  States, 
For  the District  of 

Title  of  cause. 

To  the  Hon Judge  of  said  Court. 

And  now  comes (state  whether  plain- 
tiff or  defendant)  by his  attorney,  and  feel- 
ing himself  aggrieved  by  the  final  decree  of  this  Court  entered  on 

the  ....  day  of hereby  prays  that  an 

appeal  may  be  allowed  to  him  from  the  said  decree  to  the 

Court  (here  state  either  the  Supreme  Court  of 

the  United  States  or  the  U.  S.  Circuit  Court  of  Appeals  for  the 
Circuit)  and,  in  connection  with  this  petition,  peti- 
tioner herewith  presents  his  assignment  of  errors. 

Petitioner  further  prays  that  an  order  of  supersedeas  may  be 
(288) 


APPENDIX 


entered  herein  pending  the  final  disposition  of  the  cause  and  that 
the  amount  of  security  may  be  fixed  by  the  order  allowing  this 
appeal. 


Attorney  for  (plaintiff  or  defendant) . 

Form  No.  2 

ASSIGNMENT  OF  ERRORS 

In  the  District  Court  of  the  United  States, 
For  the District  of 

Title  of  cause. 

Now  comes  the  appellant by 

.  . . his  attorney  and  in  connection  with  his 

petition  for  appeal  says  that,  in  the  record,  proceedings  and  in  the 
final  decree  aforesaid,  manifest  error  has  intervened  to  the  pre- 
judice of  the  appellant,  to-wit: 

1.  The  Court  erred  in  not  holding  that  the  bill  of  complaint 
does  not  state  facts  sufficient  to  constitute  a  cause  of  action  and  in 
denying  the  defendant's  motion  to  dismiss  the  suit. 

2.  (If  the  assignment  is  made  for  the  defendant,  then  use  the 
following) : 

The  Court  erred  in  not  holding  that  the  separate  defenses  of 
the  defendant  do  not  state  facts  sufficient  to  constitute  a  defense 
to  the  action  and  in  denying  the  motion  of  plaintiff  to  strike 
out  said  defense. 

3.  The  Court  erred  in  not  holding  that  the  counterclaim  of 
the  defendant  does  not  state  facts  sufficient  to  constitute  a  defense 
or  cause  of  action  against  the  plaintiff  and  in  denying  plaintiff's 
motion  to  strike  out  said  counter-claim. 

4.  The  Court  erred  in  not  holding  that  the  District  Court  of 

the  United  States  for  the   District  of    

has  no  jurisdiction  as  a  Federal  Court  of  the  subject  matter  hreeof , 

(289) 


APPENDIX 

and  in  denying  the  defendant's  motion  to  dismiss  the  suit  for 
want  of  jurisdiction. 

5.  The  Court  erred  in  not  holding  that  it  had  no  jurisdiction 
over  the  person  of  the  defendant in  the  above  en- 
titled cause. 

6.  The  Court  erred  in  not  holding  that  the  plaintiff  has  not 
legal  capacity  to  sue. 

7.  The  Court  erred  in  receiving  the  following  testimony: 
(Here  state  verbatim  the  testimony  received). 

8.  The  Court  erred  in  excluding  the  following  testimony: 
(Here  state  verbatim  the  testimony  excluded). 

9.  The  Court  erred  in  receiving  in  evidence  the  following 
documents:  (Here  give  the  documents  in  full). 

10.  The  Court  erred  in  refusing  to  receive  in  evidence  the 
following  documents.  (Here  give  the  documents  in  full  and 
identify  same  by  exhibit  as  received  or  rejected  in  evidence). 

11.  The  Court  erred  in  finding  the  following  facts:  (Here 
give  the  substance  of  the  finding  objected  to). 

12.  The  Court  erred  in  not  finding  as  follows  as  proposed  by 
the  defendant  (or  plaintiff) :     (Here  describe  the  findings  refused.) 

13.  The  Court  erred  in  finding  the  issues  for  the  plaintiff,  (or) 

14.  The  Court  erred  in  finding  the  issues  for  the  defendant. 
If  the  decree  was  entered  upon  the  report  of  a  Master  in 

Chancery  or  Referee,  then  use  the  following: 

The  Court  erred  in  approving  (or  rejecting)  the  report  of  the 
Referee  (or  Master  in  Chancery)  in  the  above  entitled  cause. 

15.  The  Court  erred  in  decreeing  (here  describe  the  substance 
of  the  decree). 

1 6.  The  decree  is  against  the  manifest  weight  of  evidence. 

17.  The  decree  is  contrary  to  law. 

Wherefore,  appellant  prays  that  the  decree  of  the 

Court  of  may  be  reversed,  etc.   (or  with 

directions  if  directions  are  desired). 


Attorney  for  Appellant. 
(290) 


APPENDIX 

Form  No.  3 

ANOTHER  FORM  OF  ASSIGNMENT  OF  ERRORS  IN  AN 
EQUITY  SUIT  INVOLVING  RES  AD  JUDICATA 

District  Court  of  the  United  States, 
District  of 

Division. 


Complainant, 
vs. 


No 

In  Chancery. 


Defendants. 

Assignment  of  Errors  by 

Plaintiff  and  Appellant  Herein. 

And    now    comes    the    said  plaintiff 

in  the  above  entitled  cause,  and,  in  connection  with  his  petition 
for  appeal,  assigns  the  following  errors. 

First:  The  Court  erred  in  holding  that  there  has  been  a  bind- 
ing adjudication  of  the  matters  and  things  set  forth  in  the  bill  of 
complaint  herein,  said  finding  and  holding  of  the  Court  being 
contrary  to  the  evidence  and  the  law. 

Second :  The  Court  erred  in  sustaining  the  respective  pleas  of 
former  adjudication  filed  by  the  several  defendants  herein  as  set 
forth  in  their  answers. 

Third :  The  Court  erred  in  dismissing  the  bill  of  complain  of 
this  petitioner  and  appellant  for  want  of  equity  at  plaintiff's  costs. 

By  reason  whereof  this  appellant  prays  that  said  decree  may  be 
reversed  and  remanded  with  direction  to  proceed  in  accordance 
with  the  law. 


Attorney  for  Petitioner  and  Appellant 

(291) 


APPENDIX 

Form  No.  4 

PETITION  FOR  WRIT  OF  ERROR  IN  A  COMMON  LAW 

CIVIL  ACTION 

In  the  District  Court  of  the  United  States, 
For  the District  of 

Title  of  Cause. 

To  the  Honorable , 

Judge  of  Said  Court: 

And  now  comes (state  whether  plain- 
tiff or  defendant)  by his  attorney, 

and  feeling  himself  aggrieved  by  the  final  judgment  of  this  Court 

entered  against  him  and  in  favor  of on  the 

day  of    hereby  prays  that  a 

writ  of  error  may  be  allowed  to  him  from  the  United  States  Circuit 

Court  of  Appeals  for  the Circuit  to  the  District 

Court  of  the  United  States,  for  the District  of , 

and,  in  connection  with  this  petition,  petitioner  herewith  presents 
his  assignment  of  errors. 

Petitioner  further  prays  that  an  order  of  supersedeas  may  be 
entered  herein  pending  the  final  disposition  of  the  cause  and  that 
the  amount  of  security  may  be  fixed  by  the  order  allowing  the 
writ  of  error. 


Attorney  for  Plaintiff  in  Error. 

Form  No.  5 

ASSIGNMENT  OF  ERRORS  IN  A  COMMON  LAW  CIVIL 

ACTION 

In  the  District  Court  of  the  United  States, 
For  the District  of 


Title  of  Cause. 
(292) 


APPENDIX 

And  now  comes  the  plaintiff  in  error  by 

his  attorney,  and  in  connection  with  his  petition  for  a  writ  of  error 
says  that  in  the  record,  proceedings  and  in  the  final  judgment 
aforesaid  manifest  error  has  intervened  to  the  prejudice  of  the 
plaintiff  in  error,  to-wit: 

1.  The  Court  erred  in  not  sustaining  the  demurrer  of  the 
plaintiff  in  error  and  the  defendant  below  to  the  complaint  (or 
declaration  of  the  plaintiff  below  and  the  defendant  in  error 
herein),  or 

2.  The  Court  erred  in  not  sustaining  the  demurrer  of  the 
defendant  to  the  evidence  of  the  plaintiff  made  at  the  close  of  the 
plaintiff's  case  and  in  not  directing  the  jury  to  find  the  issues  for 
the  defendant. 

3.  (If  the  assignment  of  errors  is  made  for  the  plaintiff,  use 
the  following.) 

The  Court  erred  in  sustaining  the  demurrer  of  the  defendant 
to  the  evidence  of  the  plaintiff  and  in  directing  the  jury  to  find 
the  issues  for  the  defendant. 

4.  The  Court  erred  in  admitting  the  following  evidence: 
(Here  state  verbatim  the  evidence  admitted). 

5.  The  Court  erred  in  rejecting  the  following  evidence  offered 

by (Here  give  the  evidence  offered  verbatim  as 

appears  in  the  bill  of  exceptions.) 

6.  The  Court  erred  in  striking  out  the  following  evidence: 
(Here  give  verbatim  the  evidence  stricken  out). 

7.  The  Court  erred  in  charging  the  jury  as  follows:  (Here 
give  verbatim  the  charge  made  by  the  Court  which  is  objected 
to). 

8.  The  Court  erred  in  not  charging  the  jury  as  requested  by 
the  (plaintiff  or  def endantl  as  follows :  (Here  give  verbatim  the 
charges  requested). 

9.  The  Court  erred  in  not  setting  aside  the  verdict  of  the 
jury  on  the  ground  that  there  is  no  evidence  in  the  record  upon 
which  to  sustain  the  verdict. 

10.  The  Court  erred  in  overruling  the  motion  of  the  defend- 

(293) 


APPENDIX 

ant  to  set  aside  the  verdict  and  grant  a  new  trial.     (See  §7,  Chap. 
II.,  p.  43  of  this  book.) 

11.  The  Court  erred  in  overruling  the  motion  of  the  defend- 
ant in  arrest  of  judgment. 

12.  The  Court  erred  in  entering  judgment  upon  the  verdict. 

13.  The  verdict  and  judgment  are  contrary  to  law. 

By  reason  whereof,  plaintiff  in  error  prays  that  the  judgment 
aforesaid  may  be  reversed,  etc. 


Attorney  for  Plaintiff  in  Error. 

Form  No.  6 
BOND  ON  APPEAL  OR  WRIT  OF  ERROR 

Know  all  Men  by  these  Presents,  That  we,  

,  as   principal, 

and 

,  as  sureties, 

are  held  and  firmly  bound  unto 


in  the  full  and  just  sum  of dollars, 

to  be  paid  to  the  said  


certain  attorney,  executors,  administrators,  or  assigns:  to  which 
payment,  well  and  truly  to  be  made,  we  bind  ourselves,  our  heirs, 
executors,  and  administrators,   jointly  and  severally,  by  these 

presents.     Sealed  with  our  seals  and  dated  this   

day  of ,  in  the  year  of  our  Lord  one  thousand  nine 

hundred  and   

Whereas,   lately  at  a  term  of  the   District  Court  of  the 
(294) 


APPENDIX 


United  States,  for  the . District  of 

in  a  suit  depending  in  said  Court,  between 


a  judgment  (or  decree)  was  rendered  against  the  said. 


for Dollars  and  costs 

and  the  said  


having  obtained  an  appeal  to  (or  writ  of  error  from)  the 

(here  describe  Court  to  which  the  appeal  or  writ  of  error  was 
allowed)  to  reverse  the  judgment  (or  decree)  in  the  aforesaid  suit, 


Now,  the  Condition  of  the  Above  Obligation  is  Such, 
That  if  the  said 

shall  prosecute 

his  appeal  (or  writ  of  error)  to  effect,  and  will  pay  the  amount  of 
said  judgment  (or  decree)  and  answer  all  damages  and  costs  if  he 
(or  she)  fail  to  make  his  (or  her)  plea  good,  then  the  above  obli- 
gation to  be  void;  else  to  remain  in  full  force  and  virtue. 


Sealed  and  delivered  in  presence  of  — 


[Seal] 
[Seal] 
[Seal] 


Approved  by — 

Judge. 


(295) 


APPENDIX 

Form  No.  7 

CITATION  ON  APPEAL  OR  WRIT  OF  ERROR  IN  SUPREME 

COURT  TO  BE  SIGNED  BY  JUDGE  ALLOWING 

THE  APPEAL  OR  WRIT  OF  ERROR. 

For  Citation  in  Court  of  Appeals  use  Form  No.  22. 

United  States  of  America,  ss: 

To 


Greeting: 

You  are  hereby  cited  and  admonished  to  be  and  appear  at  a 
Supreme  Court  of  the  United  States,  at  Washington,  within 

days  from  the  date  hereof,  pursuant  to  (an  appeal) 

a  writ  of  error,  filed  in  the  Clerk's  Office  of  the   

Court  of  


wherein 


appellant  (or  plaintiff     in  error) 

and  you  are  (appellee)  defendant     in  error,  to  show  cause,  if  any 
there  be,  why  the  judgment  rendered  against  the  said  (appellant) 
plaintiff  in  error  as  in  the  .said  (appeal)  writ  of  error  mentioned, 
(296) 


APPENDIX 

should  not  be  corrected,  and  why  speedy  justice  should  not  be 
done  to  the  parties  in  that  behalf. 

Witness,  the  Honorable ,  Judge  or 

Justice  of  the Court  of  the  United  States,  this 

....   day  of  ,  in  the  year  of  our  Lord  one 

thousand  nine  hundred  and 


Associate  Justice  of  the  Supreme  Court 

of  the  United  States  or 
Judge  of  U.  S.  District  Court. 


Form  No.  8 
WRIT  OF  ERROR  TO  FEDERAL  COURTS 

United  States  of  America,  ss: 

THE  PRESIDENT  OF  THE  UNITED  STATES, 
To  the  Honorable  the  Judges  of  the 


Greeting: 

Because  in  the  record  and  proceedings,  as  also  in  the  rendition 

of  the  judgment  of  a  plea  which  is  in  the  said 

before  you,  or  some  of  you,  between 


a  manifest  error  hath  happened,  to  the  great  damage  of  the  said 


(297) 


APPENDIX 


as  by: complaint  appears. 

We  being  willing  that  error,  if  any  hath  been,  should  be  duly  cor- 
rected, and  full  and  speedy  justice  done  to  the  parties  aforesaid  in 
this  behalf,  do  command  you,  if  judgment  be  therein  given,  that 
then  under  your  seal,  distinctly  and  openly,  you  send  the  record 
and  proceedings  aforesaid,  with  all  things  concerning  the  same,  to 
the  Supreme  Court  of  the  United  States,  together  with  this 
writ,  so  that  you  have  the  same  in  the  said  Supreme  Court  at 

Washington,  within days  from  the  date  hereof,  that  the 

record  and  proceedings  aforesaid  being  inspected,  the  said  Su- 
preme Court  may  cause  further  to  be  done  therein  to  correct  that 
error,  what  of  right,  and  according  to  the  laws  and  customs  of  the 
United  States  should  be  done. 

Witness  the  Honorable  Edward  D.  White,  Chief 

Justice  of  the  United  States,  the  day 

of ,  in    the    year    of   our    Lord    one 

thousand  nine  hundred  and   


Clerk  of  the  Supreme  Court  of  the  United  States. 
Allowed  by 

Associate  Justice  of  the  Supreme  Court  of  the  United  States. 

Form  No.  9 
FORM  OF  RETURN  OF  WRIT  OF  ERROR 
District 


of  tSS' 


In  obedience  to  the  within  writ,  I  herewith  transmit  to  the 
United  States  Supreme  Court  (or  Circuit  Court  of  Appeals,  for 
(298) 


APPENDIX 


the Circuit),  a  true  and  complete  transcript  of  the 

record  and  proceedings  in  the  foregoing  entitled  cause  this 

day  of  


(Seal)  Clerk  of  the  District  Court  of  the 

United  States,  for  the District 

of 


Form  No.  10 
CONTEMPT 

PETITION  FOR  WRIT  OF  ERROR  AND   BAIL 
(Sustained  in  Lewis  vs.  Peck,  154  Fed.  273) 

In  the  District  Court  of  the  United  States 
For  the District  of  i 

Title  of  Cause. 

To  the  Hon Judge  of  said  Court: 

Petition  for  Writ  of  Error  by petitioner  and 

respondent  in  the  above  entitled  cause: 

Now  comes,    ,  the  respondent  in  the  above 

entitled  cause,  and  respectfully  shows  that  the  District  Court  for 

the District  of ,  did  on  the day  of 

, ,  find  this  petitioner  guilty  of  contempt 

and  that  judgment  and  sentence  were  pronounced  by  said  court 
against  him  by  which  finding,  judgment,  and  sentence,  your  peti- 
tioner was  sentenced  to  a  fine  of  $ or  be  imprisoned  in  the 

jail  for (or  until  further  order  of  said  court). 

And  your  petitioner  respectfully  shows  that  in  said  record, 
proceedings,  and  judgment  in  this  cause,  lately  pending  against 
your  petitioner,  manifest  errors  have  intervened  to  the  prejudice 

(299) 


APPENDIX 

and  injury  of  your  petitioner,  all  of  which  appear  more  in  detail 
in  the  assignment  of  errors,  which  is  filed  herewith. 

Wherefore  this  petitioner  respectfully  prays  that  a  writ  of 
error  may  be  allowed  herein  from  the  United  States  Circuit  Court 
of  Appeals  for  the  District  to  the  District  Court  of  the  United 

States,  for  the Circuit,  and  that  the  record,  proceedings, 

and  judgment   aforesaid  may  be  removed  from  this  court  into 

the  said  United  States  Circuit  Court  of  Appeals  for  the 

Circuit,  to  the  end  that  the  same  may  be  in  and  by  said  Court  of 
Appeals  inspected,  reviewed,  and  considered  and  that  the  errors 
aforesaid  may  be  corrected  according  to  law,  and  the  aforesaid 
judgment  reversed  and  that  the  petitioner  be  released  on  bail 
pending  this  writ  of  error  and  that  the  amount  of  bail  be  fixed  and 
the  security  offered  approved,  and  that  a  citation  may  issue  to 
according  to  law. 


Attorney  for 

Form  No.  n 

ASSIGNMENT  OF  ERRORS  IN  CONTEMPT  CASE  FOR 
VIOLATION  OF  AN  INJUNCTION 

In  the  District  Court  of  the  United  States, 
For  the  District  of  

Title  of  Cause. 

ASSIGNMENT  OF  ERRORS 

And  now  comes  the  petitioner  and  plaintiff  in  error, , 

and,  in  connection  with  his  petition  for  a  writ  of  error,  says  that 
in  the  record  and  proceedings  and  judgment  aforesaid,  and  during 

the  trial  of  the  above  entitled  cause  in  said Court,  error 

has  intervened  to  his  prejudice,  and  this  respondent  here  assigns 
the  following  errors,  to-wit: 
(300) 


APPENDIX 

First:  Because  the  injunction,  which  the  plaintiff  in  error  is 
charged  with  having  violated,  in  terms,  does  not  prohibit  the  filing 
of  the  suit  in  a  court  of  competent  jurisdiction  as  complained  of 
against  petitioner  and  plaintiff  in  error  and  the  Court  erred  in 
adjudging  to  the  contrary. 

Second :    That  the  mere  filing  of  the  suit  in  the Court 

of County,  in  the  State  of ,  of  itself  is  not 

such  an  act  that  would  constitute  a  violation  of  said  injunction 
or  be  contempt  of  court,  as  it  does  not  interfere  with  nor  disturb 
the  possession  of  the  property,  and  is  not  an  act  forbidden  by  any 
law  or  existing  order,  and  the  Court  erred  in  holding  to  the  con- 
trary. 

Third :    That  since  the  property  in  dispute  was  not  then  and 

is  no  longer  in  the  possession  of  or  under  the  control  of  the 

Court  of  the  United  States,  for  the District  of , 

other  courts  have  and  had  full  jurisdiction  and  power  to  deal  with 
the  same  and  the  Court  erred  in  holding  to  the  contrary. 

Fourth:    That  the   Court  of  the  United  States 

cannot  summarily  decide  the  rights  of  the  parties  and  it  is  for  the 
state  courts  to  decide  the  question  of  res  adjudicata,  if  one  should 
be  raised  by  appropriate  pleadings,  and  the  court  erred  in  holding 
to  the  contrary. 

Fifth:  That  the  Courts  of  the  United  States  have  no  juris- 
diction to  restrain  prosecution  of  suits  in  the  state  courts,  except 
in  suits  arising  under  the  Bankruptcy  law  and  the  court  erred  in 
holding  to  the  contrary. 

Sixth:    That  said   Court,  for  the  reasons  above 

stated,  was  without  jurisdiction  and  also  erred  in  entering  the 
order  committing  the  petitioner  and  plaintiff  in  error  to  the 
jail  for days  (or  months) . 

Seventh :  There  is  no  competent  evidence  in  the  record  upon 
which  the  court  could  predicate  a  finding  of  guilty  against  this 
plaintiff  in  error  as  charged  in  the  information  filed  against  him. 

Eighth:  The  court  erred  in  entering  judgment  against  plain- 
tiff in  error. 

(301) 


APPENDIX 


By  reason  of  the  errors  aforesaid,  the  said prays  thax; 

the  said  judgment  and  sentence  against  and  upon  him,  the  said 
may  be  reversed  and  held  for  naught. 


Attorney  for  Petitioner. 


For  order  allowing  writ  of  error  and  bail,  citation,  etc.,  see 
Forms  Nos.  14,  15,  22  and  23,  and  in  preparing  Bill  of  Exception 
follow  Form  No.  16.  If  costs  were  awarded,  then  use  also  Form 
21. 

Form  No.  12 

PETITION  FOR  WRIT  OF  ERROR  IN   CRIMINAL  CASE, 
FOR  SUPERSEDEAS  AND  BAIL 

Title  of  cause. 

To  the  Honorable ,  Judge  of  the  District 

Court  of  the  United  States,  for  the District  of 

And  now  comes the  defendant  in  the  above 

entitled  cause,  and  feeling  himself  aggrieved  by  the  verdict  of  the 
jury  and  the  judgment  of  the  District  Court  of  the  United  States, 

for  the District  of entered  on 

the day  of ,  hereby  petitions 

for  an  order  allowing  him,  said  defendant,  to  prosecute  a  writ  of 
error  from  the  United  States  Circuit  Court  of  Appeals  of  the 

Circuit  to  the  District  Court  of  the  United  States,  for 

the District  of ;  that  said  writ  of  error  may 

be  made  a  supersedeas,  and  that  your  petitioner  be  released  on  bail 
in  an  amount  to  be  fixed  by  the  judge  thereof,  pending  the  final 
disposition  of  said  writ  of  error.  Assignment  of  errors  is  filed  with 
this  petition. 

By 

His  attorney. 
(302) 


APPENDIX 

Form  No.  13 

ASSIGNMENT  OF  ERRORS  IN  CRIMINAL  CASE 

Title  of  Cause. 

ASSIGNMENT  OF  ERRORS 

And  now  comes the  plaintiff  in  error 

and  in  connection  with  his  petition  for  a  writ  of  error  says  that  in 
the  record,  proceedings,  and  judgment  aforesaid,  error  has  inter- 
vened to  his  prejudice,  to  wit : 

First:  The  Honorable Judge  of  the  District 

Court  of  the  United  States,  erred  in  denying  the  defendant's 
petition  for  a  change  of  venue  on  the  ground  of  the  prejudice  of 
said  judge  against  the  defendant. 

Second:  The  District  Court    of    the  United  States  for  the 

District  of erred  in  setting  aside  the  defendant's 

plea  of  nolo  contendere  heretofore  entered  against  the  objection 
of  the  defendant  and  in  entering  plea  of  not  guilty  for  the  defend- 
ant on  motion  of  the  Court. 

Third:  The  Court  erred  in  overruling  the  demurrer  of  the 
defendant  to  the  indictment  found  against  the  defendant  in  the 
above  entitled  cause. 

Fourth :  The  District  Court  of  the  United  States  for  the 

District erred  in  sustaining  the  demurrer  of  the  United 

States  to  the  plea  of  former  jeopardy  of  the  defendant  filed  by 
him  on  the  . .  day  of 

Fifth :  The  Court  erred  in  not  permitting  witness to 

answer  the  following  question :     (Here  give  question  verbatim.) 

Sixth:  The  Court  erred  over  the  objection  and  exception  of 
the  defendant  in  admitting  the  following  evidence  testified  to  by 

which  is  as  follows :     (Here  give  verbatim  objectionable 

evidence.) 

Seventh :  The  Court  erred  in  excluding  the  following  evidence 
offered  by (Here  give  verbatim  evidence  excluded.) 

Eighth:  The  Court  erred  in  not  holding  that  the  defendant 

(303) 


APPENDIX 

was  and  is  entitled  to  his  liberty  under  the  Fifth  Amendment  to 
the  Constitution  of  the  United  States,  pleaded  by  him  in  his  re- 
spective pleas. 

Ninth :  The  Court  erred  in  not  directing  the  jury  at  the  close 
of  the  Government's  case  to  find  this  defendant  not  guilty. 

Tenth :  The  Court  erred  in  not  directing  the  jury  to  find  the 
defendant  not  guilty  at  the  close  of  the  whole  case. 

Eleventh:  The  Court  erred  in  charging  the  jury  as  follows: 
(Here  give  charge  verbatim.) 

Twelfth:  The  Court  erred  in  not  charging  the  jury  as  re- 
quested by  the  defendant  as  follows:  (Here  give  charge  referred  to.) 

Thirteenth :  The  verdict  of  the  jur  y  is  not  supported  by  any 
competeut  evidence  in  the  record. 

Fourteenth :  The  Court  erred  in  overruling  and  denying  the 
motion  of  the  defendant  in  arrest  of  judgment. 

Fifteenth:  The  Court  erred  in  entering  the  judgment  against 
the  defendant  upon  the  verdict  in  this  case. 

Sixteenth :  The  judgment  of  the  court  is  contrary  to  law 

Wherefore  said  plaintiff  in  error  prays  that  the  said  judgment 
of  the  District  Court  of  the  United  States  may  be  reversed  and 
held  for  naught,  etc. 


Attorney  for  petitioner. 
Form  No.  14 

ORDER  ALLOWING  WRIT  OF  ERROR  AND  ADMITTING 
DEFENDANT  TO  BAIL 

Title  of  Cause. 

Let  a  Writ  of  Error  issue  from  the  United  States  Circuit  Court 

of  Appeals  for  the Circuit  to  the  United  States  District 

Court  for  the District  of ,  as  prayed  for  in 

(304) 


APPENDIX 

the  petition  of  the  said ;  and  that  a 

citation  be  issued  to  the  defendant  in  error. 

And,  it  now  appearing  that  a  citation  has  been  served  in  the 
cause,  it  is  now  ordered  that  the  writ  of  error,  allowed  as  above 
stated,  operate  as  a  supersedeas,  and  the  defendant  be  admitted 

to  bail,  upon  furnishing  a  bond  in  the  penal  sum  of 

Dollars  conditioned  according  to  law  to  be  approved  by  me. 


-   Judge. 
Form  No.  15 
BAIL  BOND  ON  WRIT  OF  ERROR 

Know  All  Men  By  These  Presents,  That  I,  

of  the  County  of  ,  State  of  ,  as  principal, 

and of  the  County  of , 

State  of ,  as  sureties,  are  held  and  firmly  bound 

unto  the  United  States  of  America  in  the  full  and  just  sum  of 

($ )  dollars,  to  be  paid  to 

the  United  States  of  America,  to  which  payment  well  and  truly 
made  we  bind  ourselves,  our  heirs,  executors,  and  administrators, 
jointly  and  severally  by  these  presents. 

Sealed  with  our  seals  and  dated  this day  of , 

in  the  year  of  our  Lord,  One  Thousand  Nine  Hundred  and 

Whereas,  Lately  on  the  ....  day  of at 

the Term, ,  of  the  District  Court  of  the 

United  States  for  the   District  of   , 

Division,  in  a  cause  pending  in  said  Court,  between 

the  United  States  of  America,  Plaintiff,  and ,  De- 
fendant, a  judgment  and  sentence  was  rendered  against  said 

,  and  said   obtained  a 

Writ  of  Error  from  the  United  States  Circuit  Court  of  Appeals  for 

the Circuit  (or  Supreme  Court  of  the  United  States)  to  the 

said  United  States  District  Court  to  reverse  the  judgment  and 

(305) 


APPENDIX 

sentence  in  the  aforesaid  suit,  and  a  citation  directed  to  the  said 
United  States  of  America,  citing  and  admonishing  the  United 
States  of  America  to  be  and  appear  in  the  said  Court  thirty  days 
from  and  after  the  date  thereof,  which  citation  has  been  fully 
served. 

Now  the  condition  of  said  obligation  is  such,  that  if  the  said 

shall  appear  in  person  in  the  United  States  Circuit  Court 

of  Appeals  for  the Circuit  (or  Supreme  Court  of  the  United 

States)  when  said  cause  is  reached  for  argument  or  when  required 
by  law  or  rule  of  said  Court,  and  from  day  to  day  thereafter  in  said 
Court  until  said  cause  shall  be  finally  disposed  of,  and  shall  abide 
by  and  obey  the  judgment  and  all  orders  made  by  the  said 
Court  of  Appeals  (or  Supreme  Court  of  the  United  States) ,  in  said 
cause,  and  shall  surrender  himself  in  execution  of  the  judgment 
and  sentence  appealed  from  as  said  Court  may  direct,  if  the 
judgment  and  sentence  against  him  shall  be  affirmed,  and  if  he 
shall  appear  for  trial  in  the  District  Court  of  the  United  States, 

for  the  ....  District  of Division,  on  such  day  or 

days  as  may  be  appointed  for  a  retrial  by  said  District  Court  and 
abide  by  and  obey  all  orders  of  said  Court,  provided  the  judg- 
ment and  sentence  against  him  shall  be  reversed  by  the  United 
States  Supreme  Court,  then  the  above  obligation  to  be  void; 
otherwise  to  remain  in  full  force,  virtue  and  effect. 

[Seal.] 

[Seal.] 

[Seal.] 

Approved  by : 

Judge. 

(Date.) 


(306) 


APPENDIX 

Form  No.  16 

COMMON  LAW— BILL  OF  EXCEPTIONS 

In  the  District  Court  of  the  United  States, 
For  the District  of 


United  States  of  America, 

vs.  V-   Indictment  for 


BILL  OF  EXCEPTIONS 

Be  it  Remembered,  That  the  above  entitled  cause  came  on  for 

trial  on  the day  of ,  being 

one  of  the  days  of  the Term  of  said  Court,  before 

the  Hon one  of  the  judges  of  said  Court,  and  a 

jury  duly  impanelled. 


Appeared  as  Counsel  for  the 
Government. 


Appeared  as  Counsel  for  the 
Defendant. 

The  Government  to  maintain  its  case  offered  the  following 
evidence,  to- wit :  (Here  recite  the  evidence  which  may  be  done  in 
narrative  form). 

In  the  course  of  the  examination  of  the  witness 

the  following  question  was  asked:  (here  give  the  question),  to 
which  question  counsel  for  the  defendant  then  and  there  duly 
objected  upon  the  following  ground:  (here  give  the  ground  of  ob- 
jection) ;  but  the  Court  overruled  the  objection,  to  which  ruling 
of  the  Court  the  defendant  by  his  counsel  then  and  there  duly 
excepted. 

(307) 


APPENDIX 

Thereupon,  the  Government  offered  in  evidence  the  following 
document,  to-wit:  (here  describe  document),  to  which  offer  the 
defendant  by  his  counsel  then  and  there  objected  upon  the 
following  ground:  (here  state  the  ground  of  objection),  but 
the  objection  was  overruled  by  the  Court  and  the  document  was 
received  in  evidence,  to  which  ruling  of  the  Court  the  defendant 
by  his  counsel  then  and  there  duly  excepted. 

At  the  conclusion  of  the  Government's  case,  the  defendant 
demurred  to  the  evidence  introduced  by  the  Government  and 
moved  the  Court  to  direct  the  jury  to  find  the  defendant  not 
guilty  on  the  ground  that  the  Government  failed  to  prove  that 
the  defendant  committed  the  crime  as  laid  in  the  indictment  (or 
give  other  ground),  but  the  Court  overruled  the  motion,  to  which 
ruling  of  the  Court  the  defendant  by  his  counsel  then  and  there 
duly  excepted. 

Thereupon,  the  defendant  introduced  the  following  evidence: 
(Here  give  the  testimony  offered  for  the  defendant.  If  any  excep- 
tions were  taken  insert  same  using  form  as  heretofore  outlined). 

Which  was  all  the  evidence  in  the  case. 

At  the  close  of  all  the  evidence,  counsel  for  the  defendant  re- 
newed the  motion  to  direct  the  jury  to  find  the  defendant  not 
guilty,  but  the  Court  again  overruled  the  motion,  to  which  ruling 
the  defendant  by  his  counsel  then  and  there  duly  excepted. 

Thereupon,  counsel  for  the  defendant  and  before  the  jury 
retired  requested  the  Court  to  charge  the  jury  as  follows:  (Here 
state  the  charge  requested). 

Thereupon,  the  Court  charged  the  jury  as  follows:  (here  give 
the  charge  of  the  court),  to  which  charge  (or,  if  to  part  of  the 
charge,  state  what  part),  the  defendant  by  his  counsel  then  and 
there  and  before  the  jury  retired  duly  excepted. 

The  defendant  also  then  and  there  and  before  the  jury  retired 
excepted  to  the  ruling  of  the  Court  in  failing  to  charge  the  jury 
as  above  requested  by  the  defendant. 

Whereupon  the  jury  retired  and  brought  in  a  verdict  finding 
the  defendant  guilty  as  charged  in  the  indictment. 
(308) 


APPENDIX 

The  defendant,  thereupon,  moved  the  Court  to  set  aside  the 
verdict  and  grant  a  new  trial  for  the  following  reasons :  (here  give 
the  reasons  for  new  trial)  but  the  Court  overruled  the  motion,  to 
which  ruling  the  defendant  then  and  there  duly  excepted. 

The  defendant,  by  his  counsel,  thereupon,  moved  the  Court  to 
arrest  the  judgment  for  the  following  reasons,  to-wit :  (here  state 
reasons)  but  the  Court  overruled  the  motion,  to  which  ruling  of 
the  Court  the  defendant  by  his  counsel  then  and  there  duly 
excepted. 

Thereupon,  the  Court  entered  judgment  upon  the  verdict  and 

sentenced  the  defendant  to years  in 

Penitentiary,  and  to  pay  a  fine  in  the  sum  of 

($ )  Dollars,  and  to  pay  the  costs  of  this  action,  to 

which  ruling  and  judgment  of  the  Court,  the  defendant  by  his 
counsel  then  and  there  duly  excepted. 

This  is  to  certify  that  the  foregoing  bill  of  exceptions  tendered 
by  the  defendant  is  correct  in  every  particular  and  is  hereby 
settled  and  allowed  and  made  a  part  of  the  record  in  this  cause. 

Done  in  open  Court  this day  of 1917. 


U.  S.  District  Judge  (Seal) 

BILL  OF  EXCEPTIONS  IN  A  CIVIL  COMMON  LAW  ACTION 

Form  No.  16  as  near  as  applicable  may  be  used  in  a  civil 
suit  at  common  law. 

Form  No.  17 
FORMS  ON  APPEAL  IN  HABEAS  CORPUS  MATTERS 

DEPORTATION  CASE 

In  the  District  Court  of  the  United  States, 
District  of 


In  the  Matter  of       )  Habeas  Corpus> 


(309) 


APPENDIX 

PETITION   FOR  APPEAL  AND  ADMISSION   TO  BAIL 
PENDING  APPEAL 

And  now  comes and  respectfully  repre- 
sents that  on  the    day  of    , 

a  judgment  was  entered  by  this  Court  dismissing  his  petition  for 

habeas  corpus,  and  remanding  him  in  custody  of for 

deportation 

And  your  petitioner  respectfully  shows  that  in  said  record 
proceedings  and  judgment  in  this  cause  lately  pending  against 
your  petitioner  manifest  errors  have  intervened  to  the  prejudice 
and  injury  of  your  petitioner,  all  of  which  will  appear  more  in 
detail  in  the  assignment  of  error  which  is  filed  with  this  petition. 

Wherefore,  your  petitioner  prays  that  an  appeal  may  be  al- 
lowed him  from  said  judgment  to  the  United  States  Circuit  Court 

of  Appeals  for  the Circuit,  and  that  said  appeal  may  be 

made  a  supersedeas  upon  the  filing  of  a  bond  to  be  fixed  by  the 
Court;  that  the  petitioner  may  be  admitted  to  bail  pending  the 
determination  of  the  appeal  in  the  said  Court. 

By 

Attorney  for  Petitioner. 

Form  No.  18 

ASSIGNMENT  OF  ERRORS— HABEAS  CORPUS  CASE 

In  the  District  Court  of  the  United  States, 
District  of 


In  Re No 

ASSIGNMENT  OF  ERRORS 

And  now  comes   by 

,  his  attorney,  and  in  connection  with  his  petition 

for  an  appeal,  says  that  in  the  record  and  proceedings,  and  judg- 
ment aforesaid,  and  during  the  trial  of  the  above  entitled  cause  in 
(310) 


APPENDIX 

said  District  Court,  error  has  intervened  to  his  prejudice,  and  this 
defendant  here  assigns  the  following  errors,  to-wit: 

1.  The  Court  erred  in  not  holding  that  this  petitioner  and 
appellant  is  wrongfully  held  and  illegally  imprisoned,  and  in 
dismissing  his  petition  and  remanding  him  into  custody  for  de- 
portation. The  Court  erred  in  not  holding  that  this  petitioner  is 
held  and  imprisoned  without  due  process  of  law  and  in  violation 
of  the  5th  amendment  of  the  Constitution  of  the  United  States. 

2.  The  Court  erred  in  dismissing  the  petition  for  habeas 
corpus  and  remanding  appellant  into  custody  for  deportation. 

(Here  under  separate  number  assign  further  error.) 
By  reason  whereof,  this  petitioner  and  appellant  prays  that 
said  judgment  may  be  reversed  and  that  he  be  ordered  discharged. 


Attorney  for  Petitioner  and  Appellant. 
Form  No.  19 

ORDER  ALLOWING  APPEAL  AND  RELEASING  PRISONER 

ON  BAIL  PENDING  APPEAL  IN  A  HABEAS 

CORPUS  CASE 

Title  of  cause. 

On  reading  of  the  petition  of for  appeal  and  con- 
sideration of  the  assignment  of  errors  presented  therewith  it  is 
ordered  that  the  appeal  as  prayed  for  be  and  is  herewith  allowed. 
And  it  appearing  to  the  Court  that  a  citation  was  duly  served  as 
provided  by  law  it  is  ordered  that  petitioner  be  admitted  to  bail 
pending  the  final  determination   of  this  appeal  in  the  sum  of 

$ The  appeal  to  operate  as  a  supersedeas.     Cost  bond 

on  appeal  is  hereby  fixed  on  the  sum  of  $ 

Judge. 

(311) 


APPENDIX 

Form  No.  20 
SUPERSEDEAS  BAIL  BOND 

(HABEAS  CORPUS  CASE) 

Know  All  Men  by  These  Presents,  That  we 

,  as  principal,  and 

as  suieties,  are  held  and  firmly  bound  unto  the  United  States  of 

America,  in  the  penal  sum  of ($ )  dollars, 

lawful  money  of  the  United  States,  for  the  payment  of  which  well 
and  truly  to  be  made,  we  bind  ourselves,  our  heirs,  administrators, 
and  executors  jointly,  severally,  and  firmly. 

Witness  our  hands  and  seals  this  6th  day  of  July,  1910 

Whereas,  the  said  was  on 

the day  of ,  ordered  de- 
ported from  the  United  States,  by  the  Secretary  of  Commerce 
and  Labor,  and  was  taken  into  custody  on  a  warrant  of  deporta 

tion  issued  by  him,  and  whereas  the  said sued  out  a 

writ  of  habeas  corpus  in  the  District  Court  of  the  United  States, 

for  the   District  of   ,  (Cause  No. 

),  and  whereas  by  an  order  of  said  court  entered  on 

in  said  court  by  Honorable United 

States  District  Judge,   was  remanded  to  custody 

of  the  respondent  in  said  cause,  and  his  petition  was  duly  dis- 
missed, and  whereas  the  said prayed  for 

and  was  allowed  an  appeal  to  the  United  States  Circuit  Court  of 

Appeals  for  the Circuit,  from  said  judgment,  and  it 

was  further  ordered  that  pending  such  appeal  to  the  United  States 

Circuit  Court  of  Appeals  for  the Circuit,  that  he 

should  be  admitted  to  bail  in  the  sum  of  

($ )  dollars,  for  his  appearance  and  surrender  in  the  event 

said  judgment  is  affirmed ;  Therefore,  this  obligation  is  such  that 

if  said shall  appear  and  surrender  himself  in  open  court 

before  the  judges  of  the  United  States  District  Court  for  the  .... 

District  of ,  and  abide  the  further  order  of  the 

(312) 


APPENDIX 

court,  in  the  event  said  judgment  shall  be  affirmed,  and  not  depart 
the  court,  then  this  obligation  shall  be  null  and  void ;  otherwise  to 
remain  in  full  force  and  virtue. 

In  Witness  whereof,  the  parties  hereto  have  hereunto  set 

their  hands  and  seals  this day  of A.  D 

(Seal) 

Approved  (Seal) 

i  Judge 


Form  No.  21 
APPEAL  BOND  FOR  COSTS 

(HABEAS  CORPUS  CASE) 

Know  All  Men  by  These  Presents,  That  we, , 

as  principal,  and   as  surety,  are  held 

and  firmly  bound  unto  the  United  States  of  America  in  the  full 

and  just  sum  of    ($ )  Dollars, 

to  be  paid  to  the  said  United  States  of  America  certain  attorney, 
executors,  administrators,  or  assigns;  to  which  payment,  well  and 
truly  to  be  made,  we  bind  ourselves,  our  heirs,  executors,  and 
administrators,  jointly  and  severally,  by  these  presents.     Sealed 

with  our  seals  and  dated  this  ....  day  of in  the 

year  of  our  Lord  one  thousand  nine  hundred  and 

Whereas,  lately  at  the  ....  term ,  at  the 

District  Court  of  the  United  States  for  the District 

of in  a  suit  pending  in  said  court,  between 

and  the  United  States  of  America,  a  judgment  was 

rendered  against  the  said dismissing  his  petition 

for  habeas  corpus,  and  remanding  him  into  custody,  and  for  costs, 

and  the  said having  obtained  an  appeal  to  the 

United  States  Circuit  Court  of  Appeals  for  the   

Circuit,  to  reverse  the  decree  in  the  aforesaid  suit. 

(313) 


APPENDIX 

Now,  the  condition  of  the  above  obligation  is  such,  That  if  the 
said shall  prosecute  his  appeal  to  effect  and  an- 
swer all  damages  and  costs,  if  he  fail  to  make  his  plea  good,  then 
the  above  obligation  to  be  void;  else  to  remain  in  full  force  and 
virtue. 


(Date) 
Approved  by: 


(Seal) 
(Seal) 


Judge. 

Form  No.  22 
CITATION 

(HABEAS  CORPUS  CASE) 
The  United  States  of  America,  ss: 

The  President  of  the  United  States  to  The  United  States  of 
America,  Greeting: 

To  the  United  States  of  America : 

You  are  hereby  cited  and  admonished  to  be  and  appear  at 

the  United  States  Circuit  Court  of  Appeals  for  the 

Circuit,  at  the  city  of   within days 

from  the  date  of  this  writ,  pursuant  to  an  appeal  duly  allowed 
by   the    District    Court   of   the  United   States  in  and  for  the 

District  of ,  and  filed  in  the  Clerk's  office 

of  said  court  on  the day  of ,  in 

a  cause  wherein is  appellant  and  you  ap- 
pellee, to  show  cause  if  any  why  the  decree  rendered  against  the 
said  appellant  as  in  said  appeal  mentioned  should  not  be  collected, 
and  why  speedy  justice  should  not  be  done  to  the  party  in  that 
behalf. 
(314) 


APPENDIX 


Witness  the  Honorable Judge  of  the  Dis- 
trict Court  of  the  United  States,  in  and  for  the Dis- 
trict of ,  this day  of 

and  of  the  Independence  of  the  United  States,  the  one  hundred  and 


District  Judge. 
Attest: 

,  Clerk. 

By ,  Deputy  Clerk. 

(Seal) 

Service  of  the  within  citation  and  receipt  of  a  copy  is  hereby 
admitted  this  ....  day  of 


U.  S.  Attorney, 
Attorney  for  Petitioner. 


Form  No.  23 

CERTIFICATE  OF  DISTRICT  JUDGE  CERTIFYING  THE 
QUESTION  OF  JURISDICTION 

In  the  District  Court  of  the  United  States, 
For  the District  of 


,  Division. 


Title  of  Cause: 

Be  it  Remembered,  That  on  the day  of 

......  this  cause  came  on  to  be  heard  upon  the  motion  of  the 

defendant to  dismiss  the  said  suit  on  the  ground 

that  the  District  Court  of  the  United  States  for  the  

District  of  had  no  jurisdiction  as  a  Federal 

(315) 


APPENDIX 

Court  over  the  subject  matter  of  the  cause  and  the  Court  upon  due 
consideration  of  said  motion  and  after  hearing  the  arguments  of 
counsel  sustained  the  same  on  the  sole  ground  that  this  Court  had 
no  jurisdiction  of  the  said  cause  as  a  Federal  Court  and  accordingly- 
directed  that  a  decree  be  made  and  entered  herein  dismissing  said 
suit  for  want  of  jurisdiction  and  this  ruling  of  the  Court  is  hereby 
certified  to  the  Supreme  Court  of  the  United  States. 

I  further  certify  that  the  matter  in  controversy  herein,  as 
shown  by  the  record  exceeds  in  value  Three  Thousand  ($3,000) 
Dollars  exclusive  of  interest  and  costs. 


Dated,  this  day  of 


Judge  of  the  United  States 

District  Court,  for  the 
District  of   


Form  No.  24 

BANKRUPTCY 

ORIGINAL   PETITION   TO   REVISE 
(Drawn  by  the  author,  granted  and  sustained  in  216  Fed.  887.) 

Note:    A  petition   to   revise  must   be  filed  in  U.  S.  Circuit 
Court  of  Appeals  and  not  in  the  District  Court. 

PETITION  TO  REVISE 

In  the  United  States  Circuit  Court  of  Appeals, 
For  the  Circuit. 

In  the  Matter  of  x 

(.      In  Bankruptcy. 

Bankrupt.  ) 

In  Re  Petition  of for  Review. 

(316) 


APPENDIX 

The  Honorable  Judges  of  the  United  States  Circuit  Court  of 
Appeals,  for  the Circuit. 

The  petition  of (trading  under  the  firm  name 

of ),  respectfully  shows  unto  the  Court: 

That  on  the day  of ,  an  involun- 
tary petition  in  bankruptcy  was  filed  in  the  District  Court  of  the 

United  States,  for  the District  of , 

Division ;  against  said ;  that  on  the day  of 

,  said was  duly  adjudi- 
cated to  be  bankrupt  by  the  said  District  Court  and  on  the 

day  of   ,  said  cause  was  referred  generally  to 

Esq.,  Referee  in  Bankruptcy  of  said  District 

Court ;  that  prior  to  the day  of ,  the 

Honorable one  of  the  Judges  of  the  said 

District  Court  of  the  United  States  for  the District  of 

,  conducted  an  investigation  in  said  court  re- 
lating to  the  discovery  of  assets  of  the  said  named  bankrupt; 

that  your  petitioners,    ,  and were 

called  as  witnesses  before  said  court  and  gave  their  testimony; 
that  the  said  bankrupt  was  examined  and  gave  his  testimony; 

that  prior  to  said  date,  to-wit :  the  ....  day  of 

,  and  at  the  time  such  testimony  was  taken,  there  was 

no  issue  of  law  or  fact  formed  for  the  adjudication  of  the  rights  of 
your  petitioners,  and  the  investigation  was  conducted  solely  for 
the  purpose  of  discovering  information  relating  to  the  disposition 
of  certain  goods  by  the  said  bankrupt. 

That,  on  the  ....  day  of ,  ,  and  subse- 
quent to  the  time  when  the  testimony  of  this  petitioner  the  said 
bankrupt  was  taken  at  the  aforesaid  hearings  for  the  discovery  of 

assets,  the ,  which  is  the  trustee  duly  elected  by 

the  court  and  the  surety  of  the  said  — ■ — ■ — ■,  bankrupt,  filed 

his  petition  in  the  said  District  Court  of  the  United  States,  setting 
forth  that  the  investigation  conducted  in  the  said  District  Court 
prior  to  the  filing  of  the  said  petition  by  the  said  trustee  discloses 

(317) 


APPENDIX 

that  said  bankrupt  has,  prior  to  the  filing  of  the  bankruptcy 

proceedings,  turned  over  to  your  petitioners, ,  certain 

goods  amounting  to ,  which  goods  were  to  be  paid 

for  by  the  said ,  to  said  bankrupt  at  the  rate 

of  or   cents  on  the  dollar;  that  said 

testimony  heard  prior  to  the  filing  of  said  petition  discloses  that 
said  sale  was  a  fraudulent  one  and  a  mere  colorable  one ;  that  your 
petitioners  caused  the  said  bankrupt  to  issue  fictitious  bills  of  sale 
for  which  the  bankrupt  received  no  consideration ;  that  the  trustee 
is  unable  to  identify  said  goods  by  reason  of  the  fact  that  your 
petitioner  have  commingled  said  goods  with  their  own  and  have 
obliterated  all  marks  of  identification  from  same.  The  said  trustee, 
therefore,  prayed  that  a  decree  be  entered  directing  your  petitioners 

to  pay  over  to  the  said  trustee  the  sum  of  $ " "  for  the 

goods  sold  by  the  bankrupt  to  your  petitioners.  (For  better  cer- 
tainty your  petitioners  refers  to  the  said  petition,  a  certified  copy 
of  which  is  attached  to  the  transcript  herewith  annexed.)  A  rule 
was  thereupon  entered  requiring  your  petitioners  to  answer  said 

petition.     To  this  petition,  your  petitioner filed 

an  answer  representing: 

That,  at  the  outset,  they  did  not  consent  to  have  the  matters 
and  things  set  forth  in  the  said  petition  adjudged  in  a  summary 
way,  and  that  they  did  not  submit  themselves  to  the  jurisdiction 
of  said  court  as  a  court  of  bankruptcy  for  the  purpose  of  having 
the  merits  of  said  petition  disposed  of ;  that  they  were  the  persons 

who  had  actual  charge  of  the  business  of  the  firm  of 

and  that was  not  an  active  partner  and  had  no 

personal  knowledge  of  the  matters  and  things  set  forth  in  the  said 
petition. 

And  further,  in  said  answer,  they  denied  the  conclusions  set 
forth  in  said  petition  filed  by  said  trustee  as  to  what  the  testimony 
heard  in  open  court  tended  to  show,  and  averred  that  the  allega- 
tions in  said  petition  were  wholly  insufficient,  vague,  and  indefinite 
and  were  purely  the  conclusions  of  the  pleader;  that  on  the  con- 
trary, these  petitioners  claimed  that  the  examination  conducted 
(318) 


APPENDIX 

before  the  said  district  court  on  the  various  dates  set  forth  in  said 
petition,  disclosed  that  these  petitioners  claimed  that  they  pur- 
chased certain  goods  from  said  bankrupts  in  good  faith  on  three 
certain  occasions,  and  that  they  had  paid  to  the  bankrupts  the  full 

amount  of  the  purchase  price  except ,  which  was  paid  to 

the  bankrupts  subsequent  to  the  filing  of  the  petition  in  bank- 
ruptcy ;  they  also  contended  that  it  appeared  from  the  examination 
of  the  bankrupts  that  at  a  prior  time  said  bankrupts  testified 
before  the  Referee  in  Bankruptcy  as  well  as  before  the  said 
district  court  substantiating  the  claim  of  your  petitioners  as  to 
the  purchase  and  sales  of  the  goods  by  the  bankrupts  to  your 
petitioners ;  that  there  being  therefore,  a  bona  fide  dispute  between 
the  parties,  these  petitioners  submitted  that  said  district  court  had 
no  jurisdiction  as  a  court  of  bankruptcy  to  adjudicate  the  con- 
troversy raised  by  said  petition  in  a  summary  way,  but  that  the 
remedy  of  the  said  trustee  was  by  a  plenary  suit  either  at  law  or 

in  equity  as  provided  by  statute,  except  as  to  the  sum  of 

which  was  paid  to  the  bankrupts  subsequent  to  the  filing  of  the 
petition  in  bankruptcy,  which  amount  these  petitioners  at  all 
times  were  ana  are  ready  and  willing  to  pay  to  the  said  trustee 
under  the  direction  of  the  court. 

And  these  petitioners  further  averred  that  the  examination 
referred  to  in  said  petition  of  the  trustee  was  one  to  discover  assets 
of  the  bankrupts'  estate;  that  these  petitioners  had  been  sub- 
poenaed to  appear  before  said  district  court  and  were  duly  ex- 
amined as  witnesses,  touching  upon  their  relations  with  the  said 
bankrupts,  and  that  in  said  examination  they  had  denied  all 
manner  of  conspiracy  with  the  said  bankrupts  as  set  forth  in  the 
petition  of  said  trustee,  and  said  petitioners  had  denied  that  they 

had  received  from  the  said  bankrupts  goods  amounting  to ; 

that  they  had  submitted  to  said  district  court  during  that  ex- 
amination three  certain  receipted  bills  showing  the  amounts  of 
purchases  and  the  amounts  paid  for  same.  That  at  said  examina- 
tion, none  of  the  bankrupts  were  able  to  give  an  itemized  state- 
ment of  the  goods  sold  by  said  bankrupts  to  your  petitioners,  but 

(319) 


APPENDIX 

gave  totals  of  the  amounts  of  the  sales  aggregating  in  all  the  sum 

of ;  that  that  amount  was  the  supposed  contract  price 

agreed  upon  between  the  said  bankrupts  and  your  petitioners; 
and  which  the  bankrupts  claimed  were  sold  to  your  petitioners  by 
them  at  fifty  or  sixty  cents  on  the  dollar.  That  these  amounts 
had  been  denied  by  your  petitioners  at  said  examination,  and  these 
petitioners  further  averred  that  they  had  been  advised  by  their 
counsel  that  the  said  petition  of  the  said  trustee  did  not  seek  to 
avoid  the  sales  made  by  the  said  bankrupts  to  the  said  petitioners, 
but  was  merely  a  demand  for  the  recovery  of  the  purchase  price 
for  said  goods  which  was  disputed  by  these  petitioners,  and  that 
such  controversy  could  not  be  litigated  and  disposed  of  in  said 
district  court  in  a  summary  way ;  that  the  action  of  the  trustee  in 
seeking  by  said  proceeding  to  recover  from  your  petitioners  the 

sum  of ,  same  being  according  to  the  contention  of  the 

trustee,  the  alleged  purchase  price  of  said  goods  as  agreed  upon 
between  the  said  bankrupts  and  your  petitioners,  was  in  legal 
effect  a  ratification  of  the  said  sales ;  that  the  recovery  of  the  pur- 
chase price  of  articles  sold  by  the  bankrupts  prior  to  the  filing  of  the 
petition  in  bankruptcy  from  third  persons  which  is  disputed,  was 
not  within  the  classes  of  cases  which  could  be  adjudicated  in  a 
summary  way. 

And  these  petitioners  further  averred  in  said  answer  that 
at  no  time  did  they  have  in  their  possession  or  keep  any  goods 
as  custodians  or  agents  for  the  said  bankrupts,  but  that  whatever 
goods  were  bought  by  them  from  the  said  bankrupts  were  for  the 
benefit  and  use  of  themselves,  and  were  not  at  any  time  held  or 
agreed  to  be  held  for  the  benefit  of  the  said  bankrupts;  that,  there- 
fore, the  said  district  court  had  no  jurisdiction  to  adjudicate  the 
merits  of  said  petition  in  a  summary  way. 

And  these  petitioners  further  averred  that  the  said  petition 
was  filed  without  authority  of  law  and  showed  on  its  face  that  the 
said  district  court,  as  a  court  of  bankiuptcy,  could  take  no  cog- 
nizance of  the  matters  and  things  set  forth  in  said  petition  without 
the  consent  of  your  petitioners. 
(320) 


APPENDIX 

filed  a  separate  answer,  setting  forth  that  he  has  no 

personal  knowledge  of  the  matters  and  things  set  forth  in  the  peti- 
tion, but  on  information  and  belief,  believes  that  the  answer  filed 

by is  true,  and  he  adopted  the  answer  so 

filed  by and  also  objected  to  the  jurisdiction  of  the  Dis- 
trict Court.  No  evidence  was  introduced  in  support  of  said  peti- 
tion, but  the  court  considered  the  evidence  taken  and  heard  by 

him  prior  to  the  filing  of  said  petition,  to-wit :  on  the day 

of 

Your  petitioners,  accordingly,  refused  to  introduce  any  evi- 
dence in  support  of  said  answers.  No  replication  was  filed  to 
either  of  said  answers. 

Upon  said  petition,  answers,  and  the  testimony  taken  prior  to 
the  filing  of  said  petition  (at  which  time  there  was  no  issue  of  fact 
or  law  between  the  parties),  the  said  District  Court  entered  a 
decree  directing  your  petitioners, to  pay  forth- 
with to  said  trustee  in  bankruptcy  the  sum  of  $ 

Certified  copies  of  said  answers  and  order  of  the  Court  are 
herewith  attached  and  made  part  of  the  transcript  of  the  record 
filed  by  these  petitioners. 

Your  petitioners  further  avers  that  said  judgment  or  decree  of 

the  said  District  Court  made  and  entered  on  the day 

of ,  was  and  is  erroneous  in  matters  of 

law  in  that : 

(a)  That  the  facts  shown  by  said  petition  of  the  said  trustee 
and  the  answer  of  }rour  petitioners  to  said  petition  (which  must  be 
taken  as  true  in  the  absence  of  a  replication)  disclose  that  there 
exists  here  an  adversary  claim  between  your  petitioners  and  the 
said  trustee,  which  can  be  litigated  only  by  a  plenary  suit  in  a 
couit  of  competent  jurisdiction,  and  that,  therefore,  the  said 
District  Court  of  the  United  States  had  no  jurisdiction  to  hear 
and  determine  same  in  a  summary  way  against  the  objection  of 
your  petitioners. 

(b)  By  said  judgment  or  decree  of  said  United  States  District 
Court,  your  petitioners  were  in  fact  deprived  of  due  process  of  law, 

(321) 


APPENDIX 

in  violation  of  the  Fifth  Amendment  to  the  Constitution  of  the 
United  States. 

(c)  That  under  the  decision  of  Mueller  v.  Nugent,  184  U.  S.  1, 
said  petition  should  have  been  filed  in  the  first  instance  before  the 
referee  in  bankruptcy  to  whom  said  cause  was  referred  generally, 
whose  duty  it  would  have  been  to  ascertain  whether  an  adverse 
claim  in  fact  exists;  that  the  said  District  Court  of  the  United 
States  had  no  jurisdiction  in  the  first  instance  to  hear  and  deter- 
mine said  petition,  inasmuch  as  the  jurisdiction  that  the  said  Dis- 
trict Court  has  in  this  class  of  cases  is  limited  to  a  review  of  the 
rulings  of  the  referee  upon  a  proper  petition  for  review. 

(d)  The  said  District  Court  of  the  United  States  for  the 

District  of had  no  authority  to  consider  the  evidence  heard 

by  said  court  before  the  said  petition  of  said  trustee  was  filed, 
because  at  the  time  of  taking  such  testimony  there  was  no  issue 
between  the  parties.  There  is  therefore  no  legal  evidence  that 
can  be  considered,  and  even  the  evidence  heard  discloses  a  total 
absence  of  evidence  in  the  record  as  to  the  value  of  the  articles 

sued  for  upon  which  a  court  could  base  a  finding  of or 

for  any  amount. 

The  said  District  Court  erred  in  not  dismissing  said  petition 
for  want  of  jurisdiction. 

The  said  District  Court  erred  in  entering  the  said  decree  or 

judgment  for  the  sum  of in  favor  of  the  said  trustee  and 

against  these  petitioners. 

Wherefoie,  Your  petitioners,  feeling  aggrieved  because  of  said 
judgment  or  decree,  pray  that  the  same  may  be  revised  in  matter 
of  law  by  your  Honorable  Court  as  provided  in  paragraph  24  b  of 
the  Bankruptcy  Law  of  1898  and  the  rules  and  practice  in  such 
case  made  and  provided. 


Counsel  for  Petitioners. 
(322) 


APPENDIX 

State  of \ 

County  of    >  ss: 

City  of ) 

— . — , — , ^  ^g  petitioner  mentioned  and  de- 
scribed in  the  foregoing  petition,  does  hereby  make  solemn  oath 
that  the  statements  of  fact  therein  contained  are  true  according 
to  the  best  of  his  knowledge,  information  and  belief. 


Subscribed  and  sworn  to  before  me, 

this day  of 

(seal) 

Deputy  Clerk,  U.  S.  Circuit  Court 
of  Appeals  for  the  ....  Circuit. 


Form  No.  25 

ORDER    GRANTING    LEAVE   TO    FILE    PETITION    AND 
RULING  RESPONDENT  TO  ANSWER 

In  the  United  States  Circuit  Court  of  Appeals 

For  the  Circuit. 

In  the  Matter  of  ) 

>     In  Bankruptcy. 

Bankrupt.  J 

Now,  on  this  day  comes ,  petitioner,  by 

his  attorney,  and  presents  his  petition 

to  revise  the  judgment   of   the  District  Court   of   the  United 

States   for   the   District  of   , 

Division,   entered  therein   on   the   day  of 

;  and  It  Is  Now  Here  Or- 
dered that  said  petition  be  filed  and  that  the 

Trustee  in  Bankruptcy  answer  said  petition   to  revise  within 

(323) 


APPENDIX 


days  from   the   service  of   a  certified  copy  of  this 

order. 


(Date) U.  S.  Circuit  Judge. 

Form  No.  26 

ANSWER  TO  PETITION  TO  REVISE 

In  the  United  States  Circuit  Court  of  Appeals 

For  the  Circuit. 

In  the  Matter  of  ) 

I  No 

Bankrupt.  / 

The  answer  of  the Trustee  of  said  Bank- 
rupt, to  the  petition  of : 

Comes  now    ,  respondent  herein,   by 

his  attorney  and  for  answer  to  the  petition 

of filed  herein  to  superintend  in  matters  of 

law  the  proceedings  of  the  District  Court,  in  Bankruptcy  sitting, 
respectfully  shows: 

That  this  Honorable  Court  has  no  jurisdiction  to  entertain 
said  petition  and  therefore  this  respondent  prays,  that  the  said 
petition  be  dismissed  for  the  following  reasons: 

a — That  no  real  questions  of  law  are  presented  for  the  con- 
sideration of  this  Court,  by  the  petition  herein,  but  only  questions 
of  fact  presented.  This  Court  is  bound  by  the  findings  of  fact  of 
the  District  Court,  and  may  not  review  the  conflicting  evidence 
upon  which  the  District  Court  made  its  conclusions  of  fact  as  set 
forth  in  the  order  complained  of. 

b — Proposition  of  law  designated  by  petitioner  under  the 
denomination  "b,"  was  never  presented  to  the  District  Court, 
hence  may  not  be  presented  here  upon  this  petition,  to  review  and 
revise  in  matters  of  law. 
(324) 


APPENDIX 

c — Proposition  of  law  designated  "d,"  in  the  petition  filed  ' 
herein,  was  not  presented  to  the  District  Court ;  all  of  the  evidence 
heard  by  the  District  Court,  upon  which  the  order  complained  of 
was  made,  was  waived  without  objection  on  the  part  of  the  peti- 
tioners herein,  and  hence  no  error  may  be  considered  upon  this 
petition  to  review  and  revise  filed  herein. 

d — And  for  other  good  causes  appearing  upon  the  face  of  the 
petition. 

And  for  further  answer  to  said  petition  to  superintend  in 
matters  of  law,  the  proceedings  of  the  District  Court,  should  this 
Honorable  Court  be  of  the  opinion  that  it  has  jurisdiction  to 
entertain  the  petition  filed  herein,  for  answer  to  said  petition  or  so 
much  as  this  respondent  is  advised  it  is  necessary  for  it  to  answer 
unto,  answering  says: 

1.  This  respondent  admits  that,  on  the day  of 

,  an  involuntary  petition  in  bankruptcy  was  filed  in  the 

District  Court  of  the  United  States,  for  the District 

of , Division,  against ; 

that,  on  the day  of ,  the  said 

,  was  duly  adjudicated  bankrupt  by  said  District 

Court ;  that,  on  the day  of ,  said 

cause  was  referred  to Esq.,  Referee  in  Bank- 
ruptcy of  said  District. 

2.  This  respondent  further  admits  that  prior  to  the 

day  of ,  the  Honorable , 

one  of  the  Judges  of  the  District  Court  of  the  United  States,  for 
the District  of conducted  an  investiga- 
tion in  said  United  States  District  Court,  relative  to  the  discovery 
of  assets  of  said  bankrupt ;  that  said  examination  by  said  District 
Court  was  begun  prior  to  the  adjudication  of  said  bankrupt  and 
prior  to  the  reference  to  said  referee  and  was  by  the  District  Court 
from  time  to  time  continued  in  said  District  Court  until  the  month 
of A.  D 

3.  This  respondent  admits  that  the  petitioner 

and   witness  were  called  as  witnesses  before 

(325) 


APPENDIX 

said  court  and  gave  their  testimony  and  that  said  bankrupt  was 
examined  and  gave  his  testimony  and  that  divers  other  witnesses 
were  likewise  examined.  But  this  respondent  denies  that,  at  the 
time  of  the  taking  of  said  testimony,  upon  which  the  order  entered 
by  the  Honorable  District  Court  and  which  is  sought  to  be  reviewed 
was  based,  there  were  no  issues  of  fact  or  of  law  framed  for  the 
adjudication  of  the  rights  of  the  petitioner  herein,  and  this  re- 
spondent charges  the  fact  to  be  that,  after  the  filing  of  the  petition 
by  this  respondent,  and  the  rule  upon  said  petitioner  herein  to 
answer,  and,  upon  the  hearing  upon  said  petition  and  answer, 
evidence  was  in  fact  received,  upon  which  the  District  Court  of 
the  United  States,  for  the District  of en- 
tered its  order  being  the  order  herein  complained  of. 

4.  This  respondent  admits  that,  on  the day  of 

he  filed  his  petition  in  said   District   Court 

against  the  petitioner  herein,  which  is  the  said  petition  upon  which 

the  order  entered  by  the  Honorable  District  Court,  for  the 

District  of   ,  was  predicated,  but  this  respondent 

denies  that  said  petition  was  filed  subsequent  to  the  time  when 
the  testimony  of  said  petitioner  and  said  bankrupt  was  taken, 
upon  said  petition,  and  charges  the  fact  to  be  that  testimony 
taken  upon  the  petition  and  answer,  upon  which  the  District 
predicates  its  order,  was  in  fact  taken  subsequent  to  the  filing  of 
the  petition  by  this  respondent,  and  the  answer  of  the  petitioner 
herein,  as  by  the  order  of  the  Honorable  District  Court  it  will 
appear. 

5.  This  respondent  further  answering  denies,  that  its  petition 
against  the  petitioner  herein,  discloses  an  alleged  state  of  facts 
as  by  the  petition  for  review  is  therein  stated,  and  makes  said 
petition  a  part  of  this  answer,  from  which  said  petition  of  this 
respondent  herein,  filed  in  the  Honorable  District  Court,  it  will 
appear  that  the  petitioner  herein  was  charged  therein  with  enter- 
ing into  a  criminal  conspiracy  to  receive  goods  and  merchandise 
from  the  bankrupt  herein ;  did  hide  and  conceal  the  same  from  this 
respondent  and  creditors  of  the  bankrupt ;  sell  and  dispose  of  the 

(326) 


APPENDIX 

same  for  the  benefit  of  said  bankrupt,  acting  at  all  times  as  the 
agent  of  and  for  the  bankrupt. 

That  the  said  petition  set  forth  specifically  and  in  detail  the 
dates,  time,  and  place,  when  and  where  said  petitioner  herein  re- 
ceived said  merchandise  from  said  bankrupt  herein,  for  said  bank- 
rupt and  the  value  of  same.  And  this  respondent  admits,  that 
there  was  a  rule  entered  by  the  Honorable  District  Court,  for  the 

District  of    ,   requiring  the  petitioner  herein  to 

answer  the  petition  of  this  respondent,  filed  in  said  District  Court, 
and  that  the  petitioner  herein  did  answer  such  petition,  as  by  said 
answers  will  appear. 

6.  This  respondent  further  answering  admits,  that  in  the 
examination  of  the  various  witnesses  and  the  bankrupt,  conducted 

before  the  Honorable  District  Court  for  the District  of 

.......  prior  to  the  filing  of  the  petition  by  this  respondent,  upon 

which  the  order  complained  of  was  made,  that  said  examination 
was  primarily  to  discover  assets  of  said  bankrupt  estate,  it  being 
apparent  to  the  Honorable  District  Court  that  there  had  been  an 
attempt  to  defraud  creditors  of  a  very  large  amount  of  money; 
that  said  petitioner  herein  was  duly  subpoenaed  to  appear  before 
said  District  Court,  during  said  examination  and  was  duly  exam- 
ing  as  a  witness,  but  that  all  the  time  when  said  petitioner  herein 
was  being  examined,  as  such  witness,  he  was  represented  by  coun- 
sel, who  in  such  proceedings  and  at  such  examination  appeared 
for  him;  took  part  in  such  proceedings  and  examination,  did  cross- 
examine  not  only  the  petitioner  herein  but  divers  other  witnesses 
and  the  bankrupt  who  appeared  for  such  examination. 

7.  This  respondent  further  answering  denies,  that  no  evidence 
was  produced  in  support  of  the  petition  filed  in  said  District  Court 
by  said  respondent,  upon  which  the  order  complained  of  was  made, 
but  charges  the  fact  to  be,  that  evidence  was  duly  received  by  the 
Court,  as  by  said  order  it  will  appear,  and  this  respondent  further 
answering  admits,  that  upon  the  petition  and  answer,  and  upon 
testimony  taken  before  the  Honorable  District  Court  of  the  United 
States,  for  the    District  of  ,  a  decree  was  entered, 

(327) 


APPENDIX 

directing  the  petitioner  herein  to  pay  to  the  Trustee  in  bankruptcy 

in  this  case,  the  sum  of  $ as  by  the  order  complained  of 

it  will  appear. 

8.  This  respondent  further  answering  states,  that  the  order 
of  the  Honorable  District  Court,  entered  upon  the  petition  of  this 
espondent  and  upon  the  answer  of  the  petitioner  herein,  and  upon 
testimony  taken  before  said  District  Court,  is  in  all  things  correct 
and  according  to  law,  and  that  no  error  was  committed  by  said 
District  Court,  and  that  the  purported  propositions  of  law,  assigned 
in  the  petition  filed  herein,  to  superintend  in  matters  of  law  the 
action  and  proceedings  of  the  District  Court,  are  in  fact  not  ques- 
tions of  law,  but  questions  of  fact,  more  especially; 

This  respondent  charges,  that  petitioner's  purported  proposi- 
tion of  law  "  a,"  as  designated  in  the  petition  filed  herein,  is  in  fact 
a  proposition  of  fact  and  not  of  law;  that  all  issues  of  fact  are 
settled  by  the  District  Court  in  its  findings  of  fact  and  in  a  pro- 
ceeding of  this  kind  may  not  be  reviewed  by  this  Honorable  Court. 

9.  This  respondent  charges,  that  petitioner's  purported  pro- 
position of  law  designated  "b"  was  never  presented  to  or  con- 
sidered by  the  District  Court,  hence  may  not  be  presented  for 
consideration  here ;  that  said  proposition  is  not  specific  as  required 
by  the  practice  for  petition  to  review  and  revise  in  matters  of  law 
only,  and  that  the  proceedings  in  the  District  Court  were  not  in 
violation  of  any  provision  of  the  Constitution  of  the  United  States. 

10.  This  respondent  further  answering  says,  that  the  pur- 
ported proposition  of  law  designated  "c, "  in  the  petition  filed 
herein,  is  supposed  to  be  based  upon  the  opinion  in  the  case  of 
Mueller  v.  Nugent,  184  U.  S.  1,  which  decision,  however,  does  not 
suppoit  the  proposition  of  the  petitioner  heiein.  And  this  re- 
spondent states  the  fact  to  be  that  the  said  opinion  does  not  sup- 
port the  contention  that  the  jurisdiction  of  the  District  Court  of 
the  United  States  in  bankruptcy  matters,  after  a  reference  to  a 
Referee,  is  limited  to  a  review  of  the  rulings  of  the  Referee  upon  a 
petition  for  review. 

11.  This  respondent  further  answering  states,  that  the  pur- 
(328) 


APPENDIX 

ported  proposition  of  law  designated  as  "d, "  by  said  petitioner'  is 
a  proposition  of  fact  and  not  of  law  and  this  court  therefore  may 
not  consider  said  proposition  of  fact  in  these  proceedings. 
Whether  this  be  so  or  not,  the  evidence  heard  by  the  District 
Court,  upon  which  it  based  its  order  complained  of  in  these  pro- 
ceedings, is  not  reviewable  by  this  Court  in  these  proceedings. 

And  this  respondent  having  thus  answered,  prays  that  said 
petition  may  be  dismissed  at  the  cost  of  said  petitioner,  or  at  least 
that  this  Honorable  Court  find  that  no  error  was  committed  in 
said  order. 


Trustee. 

Attorney  for  Respondent. 

Form  No.  27 

PETITION    ON    BEHALF    OF   THE    GOVERNMENT   FOR 
WRIT    OF    ERROR   WITH    ASSIGNMENT    OF   ERRORS 

Form  of  Writ  of  Error  under  the  Tucker  Act 
See  §50,  p.  99  of  this  book. 

United  States  of  America 

District  of   

Division 


In  the  District  Court  Thereof.  | 
Term,  A.  D j 

The  United  States  of  America,  "j 

vs.  >  Scire  Facias  No. 


PETITION  FOR  WRIT  OF  ERROR. 

The  United  States  of  America  feeling  itself  aggrieved  by  the 
final  judgment  entered  in  the  above  entitled  cause  on  the 

(329) 


APPENDIX 

day  of by  the  District  Court  of  the 

United   States  for  the District  of   

hereby  prays  that  an  appeal  from  said  judgment  may  be  allowed 
it  to  the  Supreme  Court  of  the  United  States,  and  that,  upon  the 
service  of  a  citation,  said  appeal  may  operate  as  a  supersedeas  until 
the  final  disposition  of  the  cause  by  the  Supreme  Court  of  the 
United  States. 

And  in  support  of  this  petition,  petitioner  hereby  presents  its 
assignment  of  errors. 

United  States  of  America, 

By  

United  States  Attorney  for 

District  of 

Form  No.  28 

ANOTHER  FORM  OF  ASSIGNMENT  OF  ERRORS  BY  THE 
GOVERNMENT  UNDER  THE  TUCKER  ACT 

United  States  of  America, 

District  of   

Division. 


In  the  District  Court  Thereof, 
Term,  A.  D.  19, 


I  ss. 


United  States  of  America, 

vs.  Y      No. 


ASSIGNMENT  OF  ERRORS 

The    United    States   of   America,    by United 

States  Attorney  for  the   District  of in 

connection  with  its  petition  for  appeal  in  the  above  entitled  cause 
assigns  the  following  errors  as  having  intervened  in  the  record, 
(330) 


APPENDIX 

proceedings  and  judgment  of  the  Court  in  the  above  entitled 
cause,  to-wit: 

1.     The  District  Court  erred  in  finding  that  the  plaintiff   .... 

was  entitled  to  recover  from  the  United  States 

($ )  Dollais.     (Here    assign    such    other 

errors  as  may  appear  proper.) 

Wherefore,  the  said  United  States  of  America  prays  that  the 
aforesaid  judgment  may  be  reversed,  etc., 


United  States  Attorney  for  the 
District  of 


Form  No.  29 

PRAECIPE  FOR  RECORD 

Under  Rule  8  of  the  U.  S.  Supreme  Court  and  Rule  of 

Court  of  Appeals 

In  the  District  Court  of  the  United  States, 
For  the District  of 


Title  of  Cause. 

The  Clerk  of  this  Court  is  hereby  directed  to  prepare  and 
certify  a  transcript  of  the  record  in  the  above  entitled  case  for  the 

use  of  the Court  of  the  United  States,  by  including 

therein  the  following :  (Here  give  the  papers,  orders  and  judgment, 
bill  of  exceptions  or  statement  of  evidence  desired  to  be  included 
in  the  record). 
Dated,   ,   this day  of 


Attorney  for  Plaintiff  in  Error 
(or  Appellant). 

(331) 


APPENDIX 

Form  No.  30 
NOTICE  OF  FILING  PRECIPE 

Under  Rule  8  of  U.  S.  Supreme  Court. 

In  the  District  Court  of  the  United  States, 
For  the District  of 


Title  of  cause. 
To  


Attorney  for 


Please  take  notice  that  on  the  day  of 

the  undersigned  filed  with  the  Clerk  of  this  Court  a 

Praecipe  for  the  record  to  be  transmitted  to  the    

Court  of   on  the  appeal  (or  writ  of  error)  taken  (or 

sued  out)  in  the  above  cause,  a  copy  of  which  Praecipe  is  herewith 

served  on  you. 

Dated,  this day  of 


Attorney  for 


Service  of  the  within  Notice  and  copy  of  Praecipe  is  hereby 
accepted  this day  of 


Attorney  for 

Note:  In  the  event  the  documents  designated  by  the  appel- 
lant or  plaintiff  in  error  are  insufficient  to  fairly  present  the  case 
for  the  appellee  or  defendant  in  error,  then  counsel  for  appellee 
or  defendant  in  error  under  rule  8  of  the  U.  S.  Supreme  Court 
and  rules  of  the  Court  of  Appeals  has  the  privilege  to  designate 
other  parts  of  the  record  by  giving  directions  to  that  effect  to  the 
Clerk  of  the  Court  having  charge  of  the  preparation  of  the  record 
and,  in  that  event,  the  following  form  is  suggested. 
(332) 


APPENDIX 

Form  No.  31 

FORM  FOR  DESIGNATING  OTHER  PARTS  OF  RECORD 

In  the  District  Court  of  the  United  States, 
For  the District  of 

Title  of  cause. 

To  the  Clerk  of  Said  Court: 

In  preparing  the  record  on  appeal  (or  writ  of  error)  in  the 

above  entitled  cause  for  transmission  to  the Court 

of  the  United  States,  you  are  hereby  requested  to  include  the 
following: 

(Here  designate  the  documents  omitted,  orders,  etc.) 
Dated,  this day  of 


Attorney  for  Appellee  (or 
Defendant  in  Error) 

Form  No.  32  > 

CERTIFICATE  OF  THE  CLERK  TO  THE  CORRECTNESS 
OF  THE  RECORD  AS  PER  PRAECIPE 


District  of ) 

fSS. 

, Division.  \ 


I Clerk  of  the  District  Court  of  the 

United    States    for    the District    of ,  do 

hereby  certify  the  above  and  forgoing  to  be  a  true  and  complete 
transcript  of  the  proceedings  had  of  record,  prepared  and  made  by 
me  in  accordance  with  the  Praecipe  filed  in  the  cause  entitled 

vs as  the  same  appear 

from  the  original  Records  and  Files  thereof,  now  remaining  in  my 
custody  and  control. 

(333) 


APPENDIX 


In  Testimony  Whereof,  I  have  hereunto  set  my  hand  and 

affixed  the  seal  of  said  Court,  at  my  office,  in  the  City  of , 

in  said  District,  this day  of 


(Seal)  Clerk. 

By 

Deputy  Clerk. 


Form  No.  33 

STIPULATION  TO  OMIT  CERTAIN  PARTS  FROM  PRINTED 
RECORD  TO  AVOID  DUPLICATION 

In  the  United  States  Circuit  Court  of  Appeals, 
For  the Circuit. 

or 

In  the  Supreme  Court  of  the  United  States. 
Term,  19  

Title  of  cause. 

Whereas,  in  the  transcript  of  the  record  as  made  up  by  the 

Clerk  of  the Court  of  the  United  States,  for  the 

District  of ,  in  the  above  en- 
titled cause,  certain  documents  appear  to  be  duplicated. 

Wherefore,  it  is  stipulated  by  and  between  the  parties  hereto, 
through  their  respective  counsel,  that  the  Clerk  of  this  Court  in 
printing  this  record  shall  omit  the  following  documents  appearing 
in  said  record,  to-wit : 
(334) 


APPENDIX 


(Here  enumerate  the  documents  desired  to  be  omitted). 
Dated,  this day  of 


Attorney  for  Appellant 
(or  Plaintiff  in  Error). 


Attorney  for  Appellee 
(or  Defendant  in  Error) . 

Form  No.  34 
ORDER  FOR  APPEARANCE 
File  No 

Supreme  Court  of  the  United  States  (or  U.  S.  Circuit  Court  of 
Appeals  for  the Circuit 

No ,  October  Term,  191 


vs. 


The  Clerk  will  enter  my  appearance  as  Counsel  for  the , 

(Name)   

(P.  O.  Address)    


Note.- — Must  be  signed  by  a  member  of  the  Bar  of  the  Supreme 
Court  United  States.  Individual  and  not  firm  names  must  be 
signed. 

(335) 


APPENDIX 

Form  No.  35 

NOTICE  DESIGNATING  PART  OF  THE  RECORD  UNDER 

RULE   10,  SUBDIVISION  9,  RULE  OF  THE  SUPREME 

COURT  OF  THE  UNITED  STATES 


In  the  Supreme  Court  of  the  United  States,  at  the 

Term,  A.D.  19 

Gem  No 

Title  of  Cause. 

Appeal  from  (or  Error  to)  the Court  of 

To    and    ,    Attorneys   for 

Appealant  (or  Defendant  in  Error)  in  above  entitled  cause : 

We  herewith  serve  upon  the  appealant  (or  defendant  in  error) 
above  named  by  delivery  to  you  ....  copies  of  the  statement  of 
the  errors  upon  which  the  appealant  (or  plaintiff  in  error)  in  the 
above  entitled  cause  intends  to  rely  and  of  the  parts  of  the  record 
which  plaintiff  in  error  thinks  necessary  for  the  consideration 
thereof. 
Dated, 19 


Attorney  for  Appealant  (or  Plaintiff  in  Error.) 

Service  of  the  foregoing  notice  this  ....  day  of 

is  hereby  acknowledged,  also  service  of  the  statement 

therein  referred  to. 


Attorney  for  Defendant  in  Error 


(336) 


APPENDIX 

Form  No.  36 

DESIGNATING  PART  OF  THE  RECORD  UNDER  RULE 
10,  SUBDIVISION  9  OF  THE  SUPREME  COURT  OF 
THE  UNITED  STATES  BY  APPEALANT  OR  PLAIN- 
TIFF IN  ERROR 

In  the  Supreme  Court  of  the  United  States,  at  the 

Term,  A.  D.  19 

Title  of  Cause. 

Appeal  from  (or  Error  to)  the Court  of 

The  appealant  (or  plaintiff  in  error)  by 

Attorney  presents  the  following  statement  of  errors  upon  which 
appealant  (or  plaintiff  in  error)  intends  to  reply  in  the  above 
case  and  of  the  parts  of  the  record  which  plaintiff  in  error  thinks 
necessary  for  the  consideration  thereof. 

(Here  specify  the  errors  in  the  same  manner  as  in  assignment  of 
errors.) 

The  appealant  (or  plaintiff  in  error)  also  states  that  it  con- 
sidered the  following  parts  of  the  record  necessary  for  the  con- 
sideration of  the  errors  upon  which  it  intends  to  rely,  to  wit: 
(Here  designate  parts  and  pages  of  record,  as  follows) 

Pages 

229  to  231  Beginning  with  last  question  on  p.  229;  print  to  the 

end  of  p.  231. 
568  to  581  Beginning  on  page  568,  " ,  called  as  a  witnesss, " 

etc.;  print  to  the  end  of  the  line  ending  "not  a  thing,"  on 

p.  581. 

Respectfully  submitted, 


Attorneys  for  Appealant  (or  Plaintiff  in  Error). 

(337) 


APPENDIX 

Form  No.  37 

DESIGNATING  PART  OF  THE  RECORD  UNDER  RULE 
10,  SUBDIVISION  9,  OF  THE  SUPREME  COURT  OF 
THE  UNITED  STATES  BY  APPELLEE  OR  THE  DE- 
FENDANT IN  ERROR 


In  the  Supreme  Court  of  the  United  States,  at  the 

Term,  A.  D.  19 

Cal.  No Gen.  No. 

(Title  of  Cause) 
Error  to  the Court  of 


The  appellee  (or  defendant  in  error) ,  by his 

attorneys,  presents  the  following  statement  of  the  parts  of  the 
record  herein,  in  addition  to  those  parts  heretofore  designated 
by  the  appealant  (or  plaintiff  in  error),  which  he  deems  neces- 
sary for  the  consideration  of  the  errors  assigned  in  the  above 
entitled  cause. 

(Here  follow  in  the  same  order  as  in  preceding  form.) 

Respectfully  submitted, 
Attorneys  for  Appellee  (or  Defendant  in  Error). 

Form  No.  38 

FORM  OF  CERTIFICATE  ON  MOTION  TO  DOCKET  AND 

DISMISS  APPEAL  UNDER  RULE  9  OF  SUPREME 

COURT  UNITED  STATES 

District  Court  of  the  United  States, 

For  the District  of 

I,   ,  Clerk  of  the  District  Court  of 

the  United  States  for  the District  of 

(338) 


APPENDIX 


do  hereby  certify  that  in  a  certain  cause  pending  in 

said  Court,  wherein  


w complainant . . ,  and 


w defendant  . . . . ,  a  final  decree  was  rendered  by  said 

District  Court  on  the  day  of 

,  A.  D.  191     ,  in  favor  of  the  said 

,  and  against  the  said 

,  and  that  on  the day  of 

A.  D.  191     ,  said 

prayed  an  appeal  to  the  Supreme  Court  of  the  United  States, 
which  was  allowed. 

In  testimony  whereof  I  hereunto  subscribe 
my  name  and  affix  the  seal  of  said  Dis- 
trict Court,  at 

this day  of 

A.  D.  191... 


Clerk. 


(339) 


APPENDIX 

Form  No.  39. 

ORDER  FOR  MANDATE 

At  a  Stated  Term  of  the  United  States  Circuit 
Court  of  Appeals,  in  and  for  the  Second 
Circuit,  held  at  the  Court  Rooms  in  the 
Post  Office  Building  in  the  City  of  New 

York,  on  the day  of 

one  thousand  nine  hundred  and 


Present : 

Hon.  Alfred  C.  Coxe, 
Hon.  Henry  G.  Ward, 
Hon.  Henry  Wade  Rogers, 
Hon.  Charles  M.  Hough, 

Circuit  Judges. 


the  District  Court  of  the  United  States  for 

the District  of 

This  cause  came  on  to  be  heard  on  the  transcript  of  record  from 

the  District  Court  of  the  United  States,  for  the 

District  of ,  and  was  argued  by  counsel. 

On  consideration  whereof,    it    is    now    hereby  ordered, 

adjudged   and   decreed   that  the of  sai 

District  Court  be  and  it  hereby  is 

It  is  further  ordered  that  a  Mandate  issue  to  the  said  District 
Court  in  accordance  with  this  decree. 
(340) 


APPENDIX 

Form  No.  40 
MANDATE  TO  CIRCUIT  COURT  OF  APPEALS 

United  States  of  America,  ss: 

The  President  of  the  United  States  of  America, 

To  the  Honorable  the  Judges  of  the 

Court  of  the  United  States  for  the  

District  of 

Greeting: 

Whereas,  lately  in  the  United  States  Circuit  Court  of  Appeals 
for  the  Circuit,  in  a  cause  between 

as  by  the  inspection  of  the  transcript  of  the  record  of  the  said 
United  States  Circuit  Court  of  Appeals  which  was  brought  into 
the  Supreme  Court  of  the  United  States  by  virtue  of 

agreeably  to  the  act  of  Congress,  in  such  case  made  and  provided, 
fully  and  at  large  appears. 

And  whereas,  in  the  present  term  of  October,  in  the  year  of 

our  Lord  one  thousand  nine  hundred  and , 

the  said  cause  came  on  to  be  heard  before  the  said  Supreme 
Court,  on  the  said  transcript  of  record,  and  was  argued  by 
counsel: 

On  consideration  whereof,  It  is  now  here  ordered 

adjudged by  this  Court  that  the 

of  the  said  United  States  Circuit  Court  of  Ap- 
peals in  this  cause  be,  and  the  same  is  hereby, 

And  it  is  further  ordered,  That  this  cause  be,  and  the 

same  is  hereby,  remanded  to  the Court  of  the 

United  States  for  the District  of 

You,  therefore,  are  hereby  commanded  that  such  execution  and 

proceedings  he  had  in  said  cause,  

(341) 


APPENDIX 

as  according  to  right  and  justice,  and  the 

laws  of  the  United  States,  ought  to  be  had,  the  said 

notwithstanding. 

Witness,  the  Honorable  Edward  D.  White,  Chief  Justice 

of  the  United  States,  the  day  of , 

in  the  year  of  our  Lord  one  thousand  nine  hundred  and 


Costs  of 

Clerk $.... 

Printing  record..   $.... 
Attorney $ 


Clerk  of  the  Supreme  Court 
of  the  United  States. 


Form  No.  41 

MANDATE  TO  DISTRICT  COURT  OF  U.  S. 

United  States  of  America,  ss: 
The  President  of  the  United  States  of  America, 

To  the  Honorable  the  Judges  of  the 

Court  of  the  United  States  for  the 

District  of 

Greeting: 

Whereas,  lately  in  the  Court  of  the  United 

States  for  the District  of 

before  you,  or  some  of  you,  in  a  cause  between 

as  by  the  inspection  of  the  transcript  of  the  record 

of  the  said 

Court,  which  was  brought  into  the  Supreme  Court  of  the 
United  States  by  virtue  of 

agreeably  to  the  act  of  Congress, 

in    such    case   made   and   provided, 

fully  and  at  large  appears. 
(342) , 


APPENDIX 

And  whereas,  in  the  present  term  of  October,  in  the  year  of 

our  Lord  one  thousand  nine  hundred  and   ,  the 

said  cause  came  on  to  be  heard  before  the  said  Supreme  Court, 
on  the  said  transcript  of  record,  and  was  argued  by  counsel: 

On  consideration  whereof,  It  is  now  here  ordered 

adjudged   by   this   Court   that 

the   of  the  said   Court 

in  this  cause  be,  and  the  same  is  hereby, 

You,  therefore,  are  hereby  commanded  that  such  execution  and 

proceedings  be  had  in  said  cause,   

as  according  to  right  and  justice,  and  the 

laws  of  the  United  States,  ought  to  be  had,  the  said 

notwithstanding. 

Witness,  the  Honorable  Edward  D.  White,  Chief  Justice 

of  the  United  States,  the day  of 

in  the  year  of  our  Lord  one  thousand  nine  hundred  and 


Costs  of 

Clerk 

Printing  record. 
Attorney 


Clerk  of  the  Supreme  Court 
of  the  United  States. 


(343) 


APPENDIX 

Form  No.  42 

BILL  OF  COSTS 

United  States  Circuit  Court  of  Appeals, 
Circuit 

BILL  OF   COSTS 
Taxed  in  favor  of  in 

No. 

October  Term,  191 ..  . 


191     ,  October  Term, 


$5.00 
.25 


Docketing  Cause  and  Filing  Record. . . 

Entering  Appearance 

Filing  Papers 

Filing  Motions 

Entering  Orders 

Cost  of  Printing  Record 

Filing  Copies  Printed  Record 

Transfer  to  Calendar 1.00 

Filing  Brief 5.00 

Entering  Order  for  Mandate 1.00 

Taxing  Costs,  and  Copy 45 

Issuing  Mandate 5.00 

Attorney's  Docket  Fee 20.00 


Taxed  at  the  sum  of 


(344) 


Clerk. 


APPENDIX 

Form  No.  43 

PETITION  FOR  WRIT  OF  ERROR  FROM  U.  S.  SUPREME 
COURT  TO  HIGHEST  COURT  IN  STATE 


To  the  Honorable 

Chief  Justice  of  the Court  of . 


And  now  comes (here  state  appellant  or  appellee, 

defendant  or  respondent,  in  accordance  with  local  practice)  and 

represents  that  on  the day  of 19  — ,  a 

final  judgment  was  duly  entered  by  the (here 

name  the  highest  court  of  the  state)  affirming  the 

(judgment  or  decree)  entered  by  Court  in  a 

suit  (at  law  or  in  equity) ,  wherein   

was  plaintiff  and was  defendant,  and 

awarding  costs  in  favor  of 

That  this  is  an  action  for (here  give  a  brief  state- 
ment of  the  cause  of  action  and  the  defense  as  disclosed  by  the 
pleadings). 

And  your  petitioner  avers  that  in  his  said  declaration  (or  bill 
of  complaint  or  answer)  he  expressly  charged  that  (here  describe 
act  of  legislature  or  ordinance)  was  unconstitutional  and  deprived 
your  petitioner  of  property  without  due  process  of  law  and  con- 
travened the  Fourteenth  Amendment  to  the  Constitution  of  the 
United  States.  (Here  give  any  other  reason  for  the  Federal 
claim  as  disclosed  b}^  the  pleadings.  If  not  raised  in  the  pleadings, 
then  make  the  following  allegation :)  That,  at  the  trial  of  said 
cause,  petitioner  expressly  made  the  following  Federal  claim  (here 
set  forth  Federal  claim ;  if  based  on  an  Act  of  Congress  make  the 
following  allegation:)  That  in  said  suit  your  petitioner  claimed 
the  title,  right,  privilege,  and  immunity  under  (here  set  forth  the 

Act  of  Congress) ;  that,  notwithstanding  these  facts,  the 

(here  give  the  highest  court  of  the  state)  decided  against  the 
title,  right,  privilege  and  immunity  thus  specially  set  up  and 
claimed  by  the  petitioner.     And  petitioner  shows  that  the  said 

(345) 


APPENDIX 

judgment  and  decision  and  interpretation  of  said  Acts  of  Congress 

were  and  are  repugnant  to  the  said Constitution  and  laws 

of  the  United  States. 

(If  Federal  question  was  raised  for  first  time  by  an  assignment 
of  error  from  the  Trial  Court  to  the  Appellate  Court,  set  forth  the 
substance  of  the  assignment  of  error  so  made  and  the  decision  of 
the  court  upon  same,  if  same  were  considered.) 

And  your  petitioner  further  avers  that  in  the  aforesaid  judg- 
ment and  proceedings  certain  errors  were  committed  to  the 
prejudice  of  your  petitioner,  all  of  which  will  more  fully  appear 
from  the  assignment  of  errors,  which  is  filed  herewith. 

Wherefore,  your  petitioner  prays  that  a  writ  of  error 
from  the  Supreme  Court  of  the  United  States  may  issue  in  this 

case  to  the Court  (here  give  highest  court  of 

the  state)  for  the  correction  of  errors  so  complained  of  and  that 
a  transcript  of  record,  proceedings,  and  papers  in  this  cause  duly 

authenticated  by  the  clerk  of  the Court  (here  give 

the  highest  court  of  the  state)  may  be  sent  to  the  Supreme  Court 

of  the  United  States  as  provided  by  law. 

Dated,   the day  of  19  

Attorney  for 

Petitioner  and  Plaintiff 
in  Error. 

Form  No.  44 

ASSIGNMENT  OF  ERRORS 

(Constitutional  questions,  etc.) 

IN  THE  SUPREME  COURT  OF  THE  UNITED  STATES 

Title  of  Cause.  ) 

>  Assignment  of 
Error  to Court        J         Errors. 

And  now  comes  ,  Petitioner  and  Plain- 

(346) 


APPENDIX 

tiff  in  Error  by attorneys,  and  in 

connection  with  his  petition  for  a  writ  of  error  shows  that,  in  the 
record  and  proceedings  and  in  the  rendering  of  the  judgment  and 

decision  of  the Couit  in  the  above  entitled 

cause  manifest  error  has  intervened  to  the  prejudice  of  this 
petitioner  and  plaintiff  in  error  in  this,  to-wit : 

First  :  The  court  erred  in  holding  that  Section 01  an 

Act  of  the  State  of entitled  an  Act 

" "  (or  ordinance)  was  constitutional 

and  did  not  violate  the  Fourteenth  Amendment  to  the  Constitu- 
tion of  the  United  States  and  did  not  deprive  the  plaintiff  in  error 
of  the  equal  protection  of  the  law. 

Second  :  The  said Court  of 

erred  in  rendering  decision  against  the  title,  right,  privilege,  and 
immunity  set  up  and  claimed  by  plaintiff  in  error  under  the  Act 
of  Congress  enacted and  in  force  thence  hither- 
to, entitled  (here  give  title  of  Act,  and  a  short  description  of 
Federal  claim  under  the  Act  of  Congress)  and  in  holding  that 
(here  describe  the  hold- 
ings of  the  court). 

Third:  (Here  assign  further  error  peculiar  to  the  cast.) 

By  reason  whereof,  this  petitioner  and  plaintiff  in  error  prays 

that  the  said  judgment  of  the (here  give  highest 

court  of  the  state)  may  be  reversed,  etc. 

Dated the day  of 


Attorney  for 

Form  No.  45 

ORDER  ALLOWING  WRIT  OF  ERROR 

Title  of  Cause. 

On  reading  of  the  petition  of for  writ 

of  error  and  the  assignment  of  errors,  and  upon  due  consideration 
of  the  record  of  said  cause; 

(347) 


APPENDIX 

It  is  Ordered,  That  a  writ  of  error  be  allowed  from  the 

Supreme  Court  of  the  United  States  to  the 

Court  of  the  State  of as  prayed  for  in 

said  petition  and  that  said  writ  of  error  and  citation  thereon  be 
issued,  served  and  returned  to  the  Supreme  Court  of  the  United 
States  in  accordance  with  law  upon   condition   that  the  said 

petitioner  and  plaintiff  in  error give  security  in  the 

sum  of Dollars,  that  the  said  plaintiff  in  error  shall 

prosecute  said  writ  of  error  to  effect  and,  if  said  plaintiff  in  error 
fail  to  make  his  plea  good,  shall  answer  to  the  defendant  in 
error  for  all  costs  and  damages  that  may  be  adjudged  or  decreed 
on  account  of  said  writ  of  error. 

And  the  said  plaintiff  in  error  now  presenting  a  bond  in  the  sum 

of Dollars  with 

as  surety,  it  is  ordered  that  the 

same  be  and  hereby  is  duly  approved. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  this 

day  of 


Chief  Justice  of  the    Court 

(highest  court  of  the  state.) 


Form  N~.  46 

BOND 

Know  all  Men   by  these   Presents,  That as 

principal,    and as    surety,    are   held 

and  firmly  bound  unto (here  give  the  names 

of  the  defendants  in  error)  in  the  sum  of  One  Thousand  ($1 ,000.00) 

Dollars,  to  be  paid  to  the  said   (here 

give  the  names  of  the  defendants  in  error),  to  which  payment 
(348) 


APPENDIX 

well  and  truly  to  be  made  we  bind  ourselves  jointly  and  severally 
by  these  presents. 

Sealed  with  our  seals  and  dated  this  ....  day  of  . . 

(Seal) 

(Seal) 


Whereas,  the  above  named  plaintiffs  in  error  (here  give 
names  of  plaintiffs  in  error)  have  sued  out  a  writ  of  error  from  the 

United  States  Supreme  Court  to  the Court  (here 

give  the  highest  court  of  the  state),  to  reverse  the  judgment  of 

Court  (here  give  the  highest  court  of  the  state), 

rendered  on  the  — ■ — ■  day  of ,  in  the  suit  of 

vs (here  give  title  of  the  case). 

Now,  Therefore,  the  condition  of  this  obligation  is  such 
that,  if  the  above  named  plaintiffs  in  error  shall  prosecute  their 
said  writ  of  error  to  effect  and  answer  all  costs  and  damages  that 
may  be  adjudged,  if  they  shall  fail  to  make  good  their  plea,  then 
this  obligation  is  to  be  void ;  otherwise  to  remain  in  full  force  and 
effect. 

Approved  this  ....  day 

of (Seal) 

(Seal) 

Chief  Justice  of 

(highest  court  of  state)  (Seal) 


(349) 


APPENDIX 


J  Form  No.  47 

"  CITATION 

Y    United  States  of  America,  ss: 

V.  To Greeting: 

\9  You  are  hereby  cited  and  admonished  to  be  and  appear  at  the 

t  Supreme  Court  of  the  United  States,  at  Washington,  D.  C,  within 

"^thirty  days  from  the  date  of  the  service  of  this  citation,  pursuant 

to  a  writ  of  error  filed  in  the  Clerk's  Office  of  the 

Court  (here  give  the  highest  court  of  the  state) ,  wherein 

is  plaintiff  in  error  and  you  are  defendant  in  error,  to  show  cause, 
if  any  there  be,  why  the  judgment  rendered  against  the  said  plain- 
tiff in  error,  as  in  the  said  writ  of  error  mentioned,  should  not  be 
corrected  and  why  speedy  justice  should  not  be  done  to  the  parties 
in  that  behalf. 

Witness,  the  hand  and  seal  of  the  Honorable,  the  Chief 

Justice  of  the (here  give  the  highest  court  of 

the  state),  this day  of in  the  year  of 

our  Lord  one  thousand  nine  hundred  and 


(Seal) 

Chief  Justice  of  the 

(highest  court  of  the  state). 

Attest: 

(Seal Court,  State  of ) 

Clerk Court  of 

By Deputy. 

United  States  of  America, 

District  of ,  ss: 

I  hereby  certify  that  I  have  duly  served  the  attached  citation 
on  the  therein  named    as  attorneys  of 

(350) 


APPENDIX 

record  for  all  the  defendants  in  error,  by  handing  to  and  leaving 

with   (one  of  the  attorneys)  a 

true  copy  of  this  writ  at  the  offices  of  the  said 

at (date). 

(City  and  State) 


United  States  Marshal. 
, ,  Deputy. 


Fees  and  costs : 


Note:  Citation  may  be  served  by  any  adult  person  above  the 
age  of  twenty-one  or  by  the  United  States  Marshal.  When  served 
by  a  private  individual,  the  usual  affidavit  of  service  should  be 
annexed. 

Form  No.  48 

WRIT  OF  ERROR 

Note:  Writ  of  error  to  State  Court  must  be  signed  either  by 
Clerk  of  U.  S.  Supreme  Court  or  Clerk  of  the  U.  S.  District 
Court  and  not  by  the  Clerk  of  State  Court. 

United  States  of  America,  ss  : 

The  President  of  the  United  States  of  America, 

To  the  Honorable  the  Justices  of  the  Supreme  Court  of  the 
State  of ,  Greeting : 

Because  in  the  record  and  proceedings,  as  also  in  the  rendition 

of  the  judgment  of  a  plea  which  is  in  the  said   before 

you,  or  some  of  you,  being  the  highest  Court  of  law  or  equity  of 
the  said  State  in  which  a  decision  could  be  had  in  the  said  suit 

between   and 

wherein  was  drawn  in  question  the  validity  of  a  treaty  or  statute 
of,  or  an  authority  exercised  under  the  United  States,  and  the 
decision  was  against  (or  in  favor  of)  their  validity;  or  wherein 

(351) 


APPENDIX 

was  drawn  in  question  the  validity  of  a  statute  of  or  an  authority 
exercised  unde  rsaid  State  on  the  ground  of  their  being  repugnant 
to  the  Constitution,  treaties,  or  laws  of  the  United  States  and  the 
decision  was  in  favor  of  such  their  validity,  or  wherein  any  title, 
right,  privilege,  or  immunity  was  claimed  under  the  Constitution 
or  any  treaty  or  statute  of  or  Commission  held  or  authority 
exercised  under  the  United  States,  and  the  decision  was  against 
the  title,  right,  privilege,  or  immunity  especially  set  up  or  claimed 
under  such  constitution,  treaty,  statute,  commission  or  authority, 
a  manifest   error  hath  happened   to   the  great  damage  of  the 

said   as  by  its  complaint 

appears.  We  being  willing  that  error,  if  any  hath  been,  should 
be  duly  corrected,  and  full  and  speedy  justice  done  to  the  parties 
aforesaid  in  this  behalf,  do  command  you,  if  judgment  be  therein 
given,  that  then  under  your  seal,  distinctly  and  openly,  you  send 
the  record  and  proceedings  aforesaid,  with  all  things  concerning 
the  same,  to  the  Supreme  Court  of  the  United  States,  together 
with  this  writ,  so  that  you  have  the  same  in  the  said  Supreme 
^f1  Court  at  Washington,  withinj^O  days  from  the  date  thereof,  that 
^r^i^'^^'^^coT^^n^proceedrngs  aforesaid  being  inspected,  the  said 
Supreme  Court  may  cause  further  to  be  done  therein  to  correct 
that  error,  what  of  right,  and  according  to  the  laws  and  customs 
of  the  United  States  should  be  done. 

Witness  the  Honorable  Edward  D.  White,  Chief  Justice  of  the 

United  States,  the  ....  day  of ,  in  the  year  of  our  Lord 

one  thousand  nine  hundred. 

(Seal) 


4w 


Clerk  of  the Court  of  the  United  States 

for  the Dist.  of 

Allowed  by 

Chief  Justice  of  the Court 

of  the  State  of 

(352) 


APPENDIX 

Form  No.  49 

CERTIFICATE  OF  CLERK  OF  THE  STATE  COURT 
CERTIFYING  THE  LODGMENT  OF  CERTAIN  DOCUMENTS 

The  plaintiff  in  error on  the  ....  day  of 

filed  with  the  undersigned 

as  Clerk  of  the Court  of in  the  above 

entitled  action  the  following  documents : 

1st:    The  original  bond  approved  by on  the  .... 

day  of ,  given  as  security  for  the  prosecution  of 

the  writ  of  error  in  the  United  States  Supreme  Court. 

2nd:     The  original  writ  of  error  issued  by 

of  the Court  on  the day  of 

together  with number  of  copies,  one  for  each 

defendant  in  error  and  one  for  the  files  of  my  office. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and 

affixed  the  official  seal  of  the   Court  at 

my  office,  in  the  City  of State  of this 

day  of 


(Seal)         

Clerk  of  the Court. 

Form  No.  50 
FORM  OF  CERTIFICATE  AUTHENTICATING  RECORD 


Court  (highest  state  court) 

State  of ,  ss : 

I,   Clerk  of  the   Court 

of  the  State  of ,  do  hereby  certify  that  the 

foregoing volumes  and  the  present  volume 

constitute  a  true,  full,  and  complete  transcript  of  the  record  and 

proceedings  consisting  of volumes,  including  this 

present  volume,  to-wit: 

(353) 


APPENDIX 

Volume  1  containing  pages to inclusive. 

Volume  2  containing  pages to inclusive. 

Volume  3  containing  Atlas  of  Maps,  Plats,  and  Charts  con- 
taining pages to inclusive. 

Volume  4  containing  pages to    inclusive  of 

this  present  page  (as  per  praecipe,  if  record  has  been  so  ordered) 
in  a  certain  cause  entitled  in  this  court  (here  describe  title  of 
cause) ,  and  also  the  opinion  of  the  Court  rendered  in  said  cause 
as  the  same  now  appears  on  file  in  my  office.  Original  writ  of 
error  is  returned  with  the  transcript  of  the  record. 

In  testimony  whereof,  I  have  hereunto  set  my  hand  and  affixed 

the  official  seal  of  the  said Court  at (here  put 

in  the  capitol  of  the  state)  in  said  State,  this  ....  day  of 

19... 

(Seal  of  the  Court) 

Clerk Court  of 

Form  No.  51 

MANDATE  TO  STATE  COURT  ON  DISMISSAL  FOR 

FAILURE    TO    FILE    TRANSCRIPT    OF   RECORD 

UNDER  RULE  10 

United  States  of  America,  ss  : 
The  President  of  the  United  States  of  America, 

To  the  Honorable  the  Judges  of  the 

Court  of  the  State  of  

,  Greeting : 

Whereas,  lately  in  the  Court  of  the 

State  of  ,  before  3^ou,  or  some  of  you,  in  a 

cause  between   

as  by  the  inspection  of  the  transcript  of  the  record  of  the  said 
(354) 


APPENDIX 

Court  


which  was  brought  into  the  Supreme  Court  of  the  United 
States  by  virtue  of  a  writ  of  error 

agreeably  to  the  act  of  Congress,  in  such  case  made  and  provided, 
fully  and  at  large  appears 

And  whereas,  in  the  present  term  of  October,  in  the  year  of 

our  Lord  one  thousand  nine  hundred  and ,  the  said 

cause  came  on  to  be  heard  before  the  Supreme  Court  of  the 
United  States,  and  it  appearing  to  the  Court  that  the  parties 
have  failed  to  print  the  transcript  of  the  record, 

It  is,  therefore,  in  pursuance  of  the  tenth  rule  of  this  Court, 
now  here  ordered  and  adjudged  by  this  Court  that  the  writ  of 

error  in  this  cause  be,  and  the  same  is  hereby  dismissed 

And  the  same  is  hereby  remanded  to  you  the  said  Judges  of  the 
said  

in  order  that  such  execution  and  proceedings  may  be  had  in  the 
said  cause,  in  conformity  with  the  judgment  and  decree  of  this 
Court  above  stated,  as,  according  to  right  and  justice,  and  the 
Constitution  and  laws  of  the  United  States,  ought  to  be  had  there 
in,  the  said  writ  of  error  notwithstanding. 

Witness  the  Honorable  Edward  D.  White,  Chief  Justice 

of  the  United  States,  the  day  of 

,  in  the  year  of  our  Lord  one  thousand  nine 

hundred  and 


Costs  of  . . 
Clerk.... 
Attorney. 


Clerk  of  the  Supreme  Court  of 
the  United  States. 


(355) 


APPENDIX 

Form  No.  52 

MANDATE  OF  THE  SUPREME  COURT  OF  THE  UNITED 
STATES  TO  STATE  COURT 

United  States  of  America,  ss: 
The  President  of  the  United  States  of  America, 

To  the  Honorable  the  Judges  of  the  

Court  of  the  State  of 

,     Greeting : 

Whereas,  lately  in  the  Court  of  the 

State  of ,  before  you,  or  some  of  you,  in  a 

cause  between 

as  by  the  inspection  of  the  transcript  of  the  record  of  the  said     . . 

Court   

which  was  brought  into  the  Supreme  Court  of  the  United 
States  by  virtue  of  a  writ  of  error  

agreeably  to  the  act  of  Congress,   

in  such  case  made  and  provided,  fully  and  at 

large  appears. 

And  whereas,  in  the  present  term  of  October,  in  the  year  of 

our  Lord  one  thousand  nine  hundred  and ,  the  said 

cause  came  on  to  be  heard  before  the  Supreme  Court  of  the 
United  States  on  the  said  transcript  of  record,  and  was  argued 
by  counsel: 

On  consideration  whereof,  It  is  now  here  ordered  and  ad- 
judged by  this  Court  that  the  judgment  of  the  said   

in  this  cause  be,  and  the  same  is  hereby,   

And  the  same  is  hereby  remanded  to  you,  the  said  Judges  of  the 

said Court  of  the  State  of 

,  in    order    that    such 

execution  and  proceedings  may  be  had  in  the  said 

(356) 


APPENDIX 

cause,  in  conformity  with  the  judgment  and  decree  of  this  Court* 
above  stated,  as,  according  to  right  and  justice,  and  the  Con- 
stitution and  laws  of  the  United  States,  ought  to  be  had  therein, 
the  said  writ  of  error  notwithstanding. 

Witness  the  Honorable  Edward  D.  White,  Chief  Justice  of 

the  United  States,  the  day  of , 

in  the  year  of  our  Lord  one  thousand  nine  hundred  and 


Costs  of 

Clerk 

Printing  Record 
Attorney 


Clerk  of  the  Supreme  Court 
of  the  United  States. 


Form  No.  53 

SUMMONS  AND   SEVERANCE 

(To  be  made  part  of  the  record.     See  §11,  p.  35.) 

Title  of  Cause. 

To 

You  are  hereby  requested  to  join  with  me  (if  more  than 
one  person  appeals  then  add  "  and  the  other ap- 
pellants " )  in  the  above  entitled  cause  on  or  before  the  .... 

day  of ,  to  prosecute  an  appeal  (or  a 

writ  of  error)  in  the  above  entitled  cause  from  the  judgment  or 
decree  of  Court  (or  in  case  of  a  writ  of  error)  to  be  issued  from 
the  Supreme  Court  of  the  United  States  or  the  United  States 

Circuit  Court  for  the Circuit  or  in  case  of  error  to 

State  Court  to Court  (here  give  the  highest 

court  of  the  state),  to Court  (here  give  the  name 

of  the  court),  to  reverse  the  judgment  of  the  said 

Court   in  the   above  entitled  cause   rendered  against  me  and 

(here  name  all  the  plaintiffs  or 

(357) 


APPENDIX 

defendants)  including  yourself,  on  the  ....  day  of 

You  are  further  notified  that,  in  case  of  failure  on  your  part  to 
join  with  me  in  said  appeal  (or  writ  of  error),  it  will  be  regarded  as 
an  acquiescence  on  your  part  in  the  said  judgment  and  that  I  shall 
thereupon  prosecute  said  appeal  (or  writ  of  error)  without  you. 

You  are  further  notified  that  on  the day  of 

at (hour)  at I  will  through  my  counsel  present 

my  petition  for  appeal  (or  the  issuance  of  a  writ  of  error)  in  the 
above  entitled  cause  to  the  Honorable,  (here  give  the  name  of 
judge  to  whom  application  will  be  made),  at  which  time  and 
place  you  may  join  with  me  in  said  petition. 
Dated, ,  the day  of 


By 

His  attorney. 


Of  counsel. 
Attach  affidavit  of  service. 

Form  No.  54 

MANDATE  ON  ORDER  OF  DISMISSAL  FOR  FAILURE  TO 

PRINT  TRANSCRIPT  UNDER  RULE  10  OF  THE  U.  S. 

SUPREME  COURT 

United  States  of  America,  ss: 

The  President  of  the  United  States  of  America, 

To  the  Honorable  the  Judges  of  the   

Court  of  the  United  States  for  the 

District  of   ,     Greeting : 

Whereas,    lately   in    the  Court    of   the 

United  States  for  the   District  of 

before  you,  or  some  of  you,  in  a  cause  between , 

(358) 


APPENDIX 

as  by  the  inspection  of  the  transcript  of  the  record  of  the  said 

Court,  which  was  brought  into  the  Supreme  Court  of 

the  United  States  by  virtue  of 

agreeably  to  the  act  of  Congress,  in  such  case  made  and  provided, 
fully  and  at  large  appears. 

And  whereas,  in  the  present  term  of  October,  in  the  year  of 

our  Lord  one  thousand  nine  hundred  and   ,  the  said 

cause  came  on  to  be  heard  before  the  said  Supreme  Court,  and 
it  appearing  to  the  Court  that  the  parties  have  failed  to  print  the 
transcript  of  the  record,   

It  is,  therefore,  in  pursuance  of  the  tenth  rule  of  this  Court, 

now  here  ordered adjudged by  this  Court 

that  the be,  and  the  same  is 

hereby,  dismissed 

You,  therefore,  are  hereby  commanded  that  such  execution  and 
proceedings  be  had  in  said  cause,  as  according  to  right  and  justice, 
and  the  laws  of  the  United  States,  ought  to  be  had,  the  said  .... 
notwithstanding. 

Witness  the  Honorable,  Edward  D.  White,  Chief  Justice  of 

the  United  States,  the  day  of  

,  in  the  year  of  our  Lord  one  thousand  nine  hundred 

and 

Costs  of 

Clerk $ 

Attorney $ 


Clerk  of  the  Supreme  Court  of 
the  United  States. 


(359) 


APPENDIX 

Form  No.  53 
PETITION  FOR  CERTIORARI 

Granted  in  231  U.  S.  752,  58  L.  Ed  466. 

IN  THE 
SUPREME  COURT  OF  THE  UNITED  STATES 


Term, 

Title  of  Cause. 

To  the  Honorable,  The  Supreme  Court  of  the  United  States : 

The  petition  of ,  respectfully  shows 

to  the  court  as  follows: 

seeks  in  this  action  to  recover  damages 

against for 

This  action  was  brought  in  the  Court  of  the 

United  States  for  the District  of 

The  jurisdiction  of  the  court  was  based  under  the  statutes  of  the 
United  States,  and  particularly  under  the  statute  entitled  (here 

give  title  of  Act)  approved ,  Chap , 

Stat , (U.S.  Comp.  St.  Supp.  19 page 

),  and  amended  by  the  Act  of 

,  chap Stat.  291. 

The  trial  resulted  in  a  verdict  for  the  plaintiff  for  the  sum  of 

and  judgment  was  entered  on  the  verdict 

(date) . 

The  case  was  taken  by  writ  of  error  to  the  Circuit  Court  of 
Appeals  for  the Circuit,  which  court  on .re- 
versed this  judgment  and  remanded  the  record  to  the  court  below 
with  instructions  to  enter  judgment  for  the  defendant.  The  man- 
date went  down  on 

Your  petitioner  is  advised  that  the  Circuit  Court  of  Appeals 
was  in  error  in  ordering  judgment  to  be  entered  for  the  defendant 
below,  but  should  have  directed  a  new  trial  in  conformity  with  the 
(360) 


APPENDIX 

rule  announced  in  Slocum  v.  New  York  Life  Insurance  Company, 
228  U.  S.  364. 

Your  petitioner  presents  herewith  as  part  of  this  petition  a 
transcript  of  the  record  in  the  Circuit  Court  of  Appeals. 

Your  petitioner  respectfully  prays  that  a  writ  of  certiorari  be 
issued  out  of  and  under  the  seal  of  this  court,  directed  to  the  Cir- 
cuit Court  of  Appeals  for  the Circuit,  commanding  said 

court  to  certify  and  send  to  this  court  on  a  day  certain  to  be  therein 
designated  a  full  and  complete  transcript  of  the  record  and  all 
proceedings  of  said  Circuit  Court  of  Appeals  in  this  case,  which 
was  entitled  in  that  court,  to  the  end  that  said  cause  may  be  re- 
viewed and  determined  by  this  court  as  provided  by  law,  and  that 
your  petitioner  may  have  such  other  and  further  relief  or  remedy 
in  the  premises  as  to  this  court  may  seem  appropriate  and  that  the 
said  judgment  of  the  said  Circuit  Court  of  Appeals  may  be  re- 
versed by  this  Honorable  Court. 

Your  petitioner  further  shows  that  inasmuch  as  the  facts  are 
all  before  the  court,  justice  can  be  done  and  delay  and  expense 
can  be  saved  by  entering  an  order  modifying  the  judgment  of  the 
Circuit  Court  of  Appeals  by  eliminating  the  direction  to  enter 
judgment  fcr  defendant  notwithstanding  the  verdict,  and  sub- 
stituting a  direction  for  a  new  trial.  It  is  submitted  that  the  prin- 
ciple of  law  has  been  settled  under  the  Slocum  case  cited  above, 
and  that  there  is  sufficient  before  this  court  to  enable  it  to  make 
the  order  prayed  for  without  a  certiorari  and  sending  up  the  record 
in  obedience  thereto. 

Wherefore  your  petitioner  prays  in  the  alternative  that  an 
order  be  issued  out  of  and  under  the  seal  of  this  court,  directing 
that  the  action  of  the  Circuit  Court  of  Appeals  be  modified  by 
eliminating  the  direction  to  enter  judgment  for  the  defendant 
notwithstanding  the  verdict,  and  by  substituting  a  direction  for 
a  new  trial. 


By 

(361) 


appendix 
State  of 


County  of r 

,  being  duly  sworn,  says  that  he  is 

counsel  for ,  the  petitioner,  that  he  prepared  the 

foregoing  petition,  and  that  the  allegations  thereof  are  true  as  he 
verily  believes. 

Sworn  to  and  subscribed      \ 

before  me  this  ....  day      V 

of ,  A.  D J 

(seal) 

Notary  Public. 
Commission  expires, 


Form  No.  56 

CERTIFICATE    OF    COURT    OF    APPEALS    CERTIFYING 
QUESTIONS   TO   THE   SUPREME   COURT   OF  U.  S. 

United  States  Circuit  Court  of  Appeals,  Eighth  Circuit. 

United  States,  Appellant,  ] 

vs.  I     No.  4363. 

Solomon  Louis  Ginsberg,  Appellee.  J 

The  United  States  Circuit  Court  of  Appeals  for  the  Eighth 
Circuit  hereby  certifies  that  a  record  on  an  appeal  now  pending 
before  it  discloses  the  following: 

The  United  States  of  America  brought  a  suit  in  the  District 

Court  of  the  United  States  for  the  Western  District  of  Missouri 

to  cancel  a  certificate  of  citizenship  issued  December  18,  1912, 

to  Solomon  Louis  Ginsberg,  a  native  of  Russia.    The  suit  was 

(362) 


APPENDIX 

brought  under  the  provision  of  sec.  15  of  the  act  of  June  29, 1906, 
c.  3592,  34  Stat.  596,  authorizing— 

"proceedings  in  any  court  having  jurisdiction  to  naturalize  aliens 
in  the  judicial  district  in  which  the  naturalized  citizen  may  reside 
at  the  time  of  bringing  the  suit,  for  the  purpose  of  setting  aside 
and  canceling  the  certificate  of  citizenship  on  the  ground  of  fraud 
or  on  the  ground  that  such  certificate  of  citzenship  was  illegally 
procured." 

On  final  hearing  the  trial  court  dismissed  the  bill.  The  Govern- 
ment appealed. 

The  grounds  for  cancellation  averred  in  the  bill  were:  (a)  The 
certificate  of  citizenship  was  illegally  procured  in  that  there  was  a 
violation  of  the  provision  of  sec.  9  of  the  act  of  June  29,  1906, 
"that  every  final  hearing  upon  such  petition  (for  naturalization) 
shall  be  had  in  open  court  before  a  judge  or  judges  thereof, " 
the  hearing  in  question  having  been  before  a  judge  in  chambers  and 
not  in  open  court,  (b)  The  certificate  of  citizenship  was  ille- 
gally procured  because  though  the  averments  of  Ginsberg's  petition 
and  the  verifying  affidavits  of  his  witnesses  were  in  due  form  and 
sufficient  on  their  face,  yet  the  undisputed  facts  disclosed  at  the 
hearing  of  the  petition  showed  he  was  not  qualified  to  be  admitted 
to  citizenship ;  and  the  petition  was  also  a  fraud  upon  the  law. 

At  the  trial  of  the  suit  below  there  was  no  conflict  in  the  evi- 
dence as  to  time,  place,  and  circumstances  of  the  hearing  of  the 
petition  for  naturalization  nor  as  to  Ginsberg's  qualifications  for 
citizenship  and  the  disclosures  thereof  to  the  judge  who  awarded 
the  certificate.  Sworn  statements  of  these  matters  by  Ginsberg 
and  the  two  men  who  acted  as  his  witnesses  were  made  part  of  the 
bill  of  complaint,  and,  with  the  court  records  of  which  judicial 
notice  was  taken,  constituted  the  sole  evidence  upon  which  the 
trial  court  refused  to  cancel  the  certificate  and  dismissed  the  bill. 
This  evidence  showed  the  following: 

The  petition  for  naturalization  was  heard  by  an  United  States 
district  judge  assigned  for  service  at  Kansas  City  in  the  Western 
District  of  Missouri,  not  the  regular  judge  of  that  district.     The 

(363) 


APPENDIX 

petition  was  first  brought  up  at  a  night  session  of  the  court 
December  1G,  1912,  and  the  hearing  thereof  was  postponed  by  the 
court  with  direction  to  Ginsberg  and  his  witnesses  to  appear  at  the 
judge's  chambers  some  time  after  8  o'clock  A.  M.,  December  18, 
1912.  The  judge's  chambers  were  separate  from  but  contiguous 
to  the  courtroom.  According  to  direction  they  appeared  at  the 
chambers  about  half-past  8  o'clock  in  the  morning,  the  hearing 
was  then  had,  and  the  certificate  of  citizenship  was  awarded.  As 
shown  by  the  court  records  for  the  previous  day  court  had  ad- 
journed until  a  later  hour  on  the  18th  than  that  at  which  the  peti- 
tion was  heard.  The  petition  for  naturalization  was  filed  June 
7,  1912.  The  proofs  at  the  hearing  of  it  showed  that  Ginsberg 
had  not  resided  continuously  within  the  United  States  five  years, 
nor  within  the  State  of  Missouri  one  year,  immediately  preceding 
the  date  of  his  application,  as  required  by  sec.  4,  pp.  2  and  4  of 
the  act  of  January  29,  1906.  Ginsberg  was  a  native  subject  of 
Russia.  He  finished  his  school  studies  in  England  in  1890.  He 
then  went  to  Brazil  and  engaged  in  missionary  work.  In  1893 
he  identified  himself  with  a  f oi  eign  mission  board  in  that  country 
with  which  he  served  continuously  thereafter.  At  the  end  of  each 
seven  years  of  service  he  was  allowed  a  vacation  of  about  fourteen 
months,  and,  having  married  in  Brazil  in  1893,  a  native  of  the 
State  of  Missouri,  he  was  accustomed  to  spend  his  vacations  with 
his  wife's  relatives  in  the  latter  place,  following  which,  to  use  his 
expression,  "he  would  return  to  his  home  in  Brazil. "  When  he 
declared  his  intention  to  become  a  citizen  of  the  United  States  in 
1904  it  was  his  intention  to  sever  his  connection  with  the  mission 
board  and  remain  in  this  country,  but  the  condition  of  his  work  in 
Brazil  made  it  necessary  for  him  to  resume  his  residence  there. 
In  the  five  years  preceding  June  7,  1912,  when  his  petition  for 
naturalization  was  filed,  he  had  been  "actually  and  physically 
resident  within  the  United  States"  but  fifty-eight  days,  that  is, 
from  the  10th  of  the  preceding  April.  When  he  filed  his  petition 
for  naturalization  and  testified  in  support  thereof  he  had  no  inten- 
tion of  claiming  continuous  residence  in  the  United  States,  but 
(364) 


APPENDIX 

whenever  asked  he  stated  the  facts  about  his  actual  residence  in 
Brazil  as  above  recited.  He  said  the  clerk  of  the  court  prepared 
his  petition,  the  averments  of  which  if  true  were  sufficient  under 
the  law. 

It  is  further  certified  that  the  following  questions  of  law  arise 
from  the  record  and  are  presented,  the  decision  of  which  is  indis- 
pensable to  a  determination  of  the  case.  To  the  end  that  this 
court  may  properly  discharge  its  duty  it  desires  the  instruction 
of  the  Supreme  Court  upon  them: 

1 — Is  the  final  hearing  of  a  petition  for  naturalization  had  in 
open  court  as  required  by  sec.  9  of  the  act  of  June  29,  1906,  c. 
3592,  if  after  the  petition  is  first  presented  in  open  court  the  hear- 
ing thereof  is  passed  to  and  finally  held  in  the  chambers  of  the 
judge  adjoining  the  courtroom,  on  a  subsequent  day  and  at  an 
hour  earlier  than  that  to  which  the  court  has  been  regularly 
adjourned? 

2 — If  under  the  above  circumstances  the  final  hearing  of  the 
petition  was  not  in  open  court  as  required,  may  the  certificate  of 
citizenship  issued  on  such  a  hearing  and  the  order  pursuant  thereto 
be  set  aside  and  canceled  in  an  independent  suit  brought  under 
section  15  of  the  act  of  June  29,  1906,  c.  3592,  on  the  ground  that 
it  was  illegally  procured  or  is  a  fraud  upon  the  law? 

3 — Is  it  a  fraud  for  which  a  certificate  of  citizenship  may  be 
set  aside  and  canceled  in  an  independent  suit  brought  under  sec- 
tion 15  of  the  act  of  June  29,  1906,  c.  3592,  if  the  essential  aver- 
ments of  residence  in  the  petition  for  naturalization  are  sufficient 
on  their  face  but  are  false  in  fact,  the  petitioner  having  acted  in 
good  faith  and  in  reliance  upon  the  officer  who  prepared  the 
petition  for  him  and  having  disclosed  the  truth  at  the  hearing 
thereof  ? 

4 — May  a  certificate  of  citizenship  be  set  aside  and  canceled  in 
an  independent  suit  brought  under  section  15  of  the  act  of  June 
29,  1906,  c.  3592,  on  the  ground  that  it  was  illegally  procured  if 
the  uncontradicted  evidence  at  the  hearing  of  the  petition  showed 
indisputably  that  the  petitioner  was  not  qualified  by  residence  for 

(365) 


APPENDIX 

citizenship  and  that  the  court  or  judge  who  heard  the  petition  and 
ordered  the  certificate  misapplied  the  law  and  the  facts? 

William  C.  Hook, 

United  States  Circuit  Judge. 
Jas.  D.  Elliott, 

United    States    Dist.    Judge. 
Frank  A.  Youmans, 

U.  S.  Dist.  Judge 

Being  the  judges  who  sat  in  the  Circuit  Court  of  Appeals,  on 
the  hearing  of  the  case. 

United  States  Circuit  Court  of  Appeals,  Eighth  Circuit. 

I,  John  D.  Jordan,  clerk  of  the  United  States  Circuit  Court  of 
Appeals  for  the  Eighth  Circuit,  do  hereby  certify  that  the  fore- 
going certificate  in  the  case  of  United  States  of  America,  appel- 
lant, vs.  Solomon  Louis  Ginsberg,  No.  4363,  was  duly  filed  and 
entered  of  record  in  my  office  by  order  of  said  court,  and,  as  di- 
rected by  said  court,  the  said  certificate  is  by  me  transmitted  to 
the  Supreme  Court  of  the  United  States  for  its  action  thereon. 

In  testimony  whereof,  I  hereunto  subscribe  my  name  and  af- 
fix the  seal  of  the  United  States  Circuit  Court  of  Appeals  for  the 
Eighth  Circuit,  at  office  in  the  city  of  St.  Louis,  Missouri,  this 
fourth  day  of  March,  A.  D.  1916: 

[Seal.]  John  D.  Jordan, 

Clerk  of  the  United  States  Circuit  Court 
of  Appeals  for  the  Eighth  Circuit. 


(366) 


APPENDIX 

Form  No.  57 

STATEMENT  OF  THE  CASE  AND  QUESTIONS  CERTIFIED 
TO  THE  SUPREME  COURT  OF  THE  UNITED  STATES 

Filed  and  Recorded  March  31,  1915. 

United  States  Circuit  Court  of  Appeals  for  the  Fifth  Circuit. 

No.  2309. 

Allen  Bond  et  al.,  Plaintiffs  in  Error, 
vs. 
J.  L.  Hume,  Defendant  in  Error. 

Error  to  the  District  Court,  Western  District  of  Texas. 

Be  It  Remembered  that  this  cause  came  on  to  be  heard  on  the 
transcript  showing  the  following  facts: 

This  action  was  instituted  in  the  United  States  Circuit  Court 
for  the  Western  District  of  Texas,  at  Austin,  on  the  23rd  day  of 
February,  1910,  by  Allen  Bond  and  William  J.  Buttfield,  plaintiffs 
against  J.  L.  Hume,  defendant,  to  recover  the  balance  due  upon 
an  open  account  for  money  advanced  to  defendant,  and  paid,  laid 
out  and  expended  for  his  account,  and  for  services  rendered  and 
performed  for  defendant  at  his  special  instance  and  request  at 
divers  times  between  the  first  day  of  July,  1907,  and  the  first  day 
of  June,  1908,  at  the  City,  County  and  State  of  New  York,  in 
connection  with  the  purchase  and  sale  for  defendants  account  of 
cotton  for  future  delivery  upon  the  New  York  Cotton  Exchange, 
pursuant  to  the  rules,  regulations,  customs  and  usages  of  said 
Exchange,  and  for  the  amount  due  upon  a  certain  promissory 
note  executed  by  defendant  payable  to  the  order  of  J.  W. 
Buttfield,  and  by  the  latter  assigned  to  the  firm  of  Bond  and 
Buttfield. 

(367) 


APPENDIX 

The  plaintiff's  first  amended  original  petition  contains  the  fol- 
lowing allegations: 

"The  plaintiffs  at  the  special  instance  and  request  of  the  de- 
fendant at  the  City,  County,  and  State  of  New  York,  advanced  to 
the  defendant  and  paid,  laid  out  and  expended  for  his  account 
divers  sums  of  money,  and  did  and  performed  for  said  defendant 
at  the  City,  County  and  State  of  New  York,  divers  services  in  and 
about  the  purchase  and  sale  of  the  defendant  account  cotton  upon 
the  New  York  Cotton  Exchange,  and  in  pursuance  of  the  rules, 
regulations,  customs  and  usages  of  the  said  New  York  Cotton 
Exchange,  a  copy  of  the  rules  and  by-laws  and  regulations  being 
hereto  attached  and  marked  Exhibit  A,  and  asked  to  be  made,  etc. 

"That  the  said  services  were  rendered  and  said  money  paid 
out  by  them  to  said  defendant  for  and  at  his  request  in  buying  and 
selling  for  his  said  account  as  his  agent  cotton  for  future  delivery 
according  to  the  rules  and  regulations  of  the  New  York  Cotton 
Exchange  in  the  City  of  New  York,  a  copy  of  said  rules  and  regula- 
tions being  hereto  attached  and  marked  Exhibit,  etc. 

"Said  orders  for  the  purchase  and  sale  of  cotton  for  futuie  de- 
livery were  received  by  plaintiffs  and  executed  with  the  under- 
standing and  agreement  between  the  parties  that  actual  delivery 
for  this  account  was  contemplated,  subject  to  the  rules  and  by- 
laws of  the  said  New  York  Cotton  Exchange,  as  hereto  attached 
and  marked  said  Exhibit  A. 

"Plaintiffs  allege  further  that  they  made  said  purchase  and 
sales  of  the  cotton  for  and  at  the  request  of  the  said  defendant  at 
the  prices  respectively  authorized  by  him,  and  at  his  instance  and 
request  entered  into  binding  contrasts  of  purchase  and  sale  for 
future  delivery  in  accordance  with  the  said  rules  and  by-laws  of  the 
said  New  York  Cotton  Exchange,  a  copy  of  said  rules  and  by-laws 
being  hereto  attached  and  marked  Exhibit  A,  and  made  a  part  of 
this  petition. 

"Plaintiffs  further  allege  that  at  the  several  times  they 
made  said  purchases  and  sales  for  the  defendant  he  well  knew 
that  actual  delivery  was  contemplated,  and  well  knew  that  plain- 
(368) 


APPENDIX 

tiffs  were  to  make  and  did  make  said  purchases  and  sales  under 
and  subject  to  the  rules  and  by-laws  of  the  New  York  Cotton 
Exchange,  and  were  held  personally  bound  for  carrying  out  said 
contract,  as  will  more  fully  appear  by  reference  to  said  rules  and 
by-laws  hereto  attached  and  marked  Exhibit  A,  and  plaintiffs 
allege  that  they  promptly  advised  the  defendant  of  the  said  several 
purchases  and  sales  and  that  said  purchases  and  sales  were  made 
in  accordance  and  with  his  instruction,  subject  to  the  rules  and  by- 
laws of  the  New  York  Cotton  Exchange  and  that  said  orders  for 
the  purchase  and  sale  of  cotton  for  future  delivery  were  received 
and  executed  with  the  distinct  understanding  that  actual  de- 
livery was  contemplated  as  provided  by  the  by-laws  and  rules 
of  said  Exchange,  as  will  more  fully  appear  by  reference  to  said 
Exhibit  A. 

"The  by-laws  of  the  New  York  Cotton  Exchange  pleaded  by 
the  plaintiffs  contain  the  following  provision: 

"The  cotton  to  be  of  any  grade  from  Good  Ordinary  to  Fair 
inclusive,  and  if  tinged  or  stained  not  below  Low  Middling  Stained 
(New  York  Cotton  Exchange  Inspection  and  Classification)  at  the 
price  of  —  cents  per  pound  for  middling,  with  additions  or  de- 
ductions for  other  grades  according  to  the  rates  of  the  New  York 
Cotton  Exchange  existing  on  the  day  previous  to  the  date  of  the 
transferable  notice  of  delivery. 

To  this  pleading  the  defendant,  in  the  lower  court,  interposed 
the  following  exceptions : 

"  I.  Now  comes  the  defendant  in  the  above  entitled  cause  by 
his  attorney,  and  excepts  to  plaintiffs'  petition  herein  and  says 
that  the  same  is  not  sufficient  in  law  to  require  him  to  answer  and 
should  be  dismissed. 

"  II.  And  for  special  cause  of  exception  defendant  shows  the 
following: 

1.  It  is  apparent  from  the  face  of  plaintiffs'  petition  that  the 
balance  due  upon  the  alleged  account  sued  on,  arose  out  of  a 
gaming  transaction  in  cotton  futures  on  the  New  York  Cotton 
Exchange,  that  none  of  the  cotton  alleged  to  have  been  bought 

(3G9) 


APPENDIX 

and  sold  was  delivered,  but  the  account  sued  on  simply  represents 
the  difference  in  the  rise  and  fall  of  the  market  on  said  Cotton 
Exchange,  and  were  alleged  to  have  been  settled  by  plaintiffs  by 
paying  or  receiving  a  margin  or  profit  on  each  contract,  as  shown 
in  said  account,  and  that  the  alleged  balance  claimed  by  plaintiff 
to  be  due  from  defendant  consists  of  said  alleged  margin  or  profit. 

2.  It  appears  from  plaintiff's  petition  that  said  alleged  ac- 
count sued  on  arose  out  of  transactions  on  the  New  York  Cotton 
Exchange,  and  pursuant  to  the  rules,  regulations,  customs  and 
usages  of  said  Exchange,  and  does  not  show  or  set  forth  that  in  the 
settlement  or  closing  out  of  said  transaction  sued  on  by  delivery 
or  tender  of  any  grade  or  grades  of  cotton  other  than  the  grade 
upon  which  the  prices  were  based  in  the  transaction  sued  on,  that 
the  same  were  settled  or  closed  out  at  the  actual  price  for  spot 
delivery  of  such  other  grade  or  grades  at  the  time  and  place  of 
delivery  or  tender." 

Upon  this  record  the  Court  below  entered  the  following  order : 

"Thereupon  came  on  to  be  heard  the  demurrers  and  exceptions 
of  defendant  to  plaintiffs'  amended  petition  and  the  same  having 
been  heard  and  duly  considered,  it  is  the  opinion  of  the  Court  that 
said  demurrers  and  exceptions  should  be  sustained,  and  it  is  ac- 
cordingly so  ordered,  and  the  plaintiffs  declining  to  amend,  it  is 
further  ordered  that  said  cause  be  and  the  same  is  hereby  dis- 
missed at  the  cost  of  plaintiffs,  to  which  order  of  the  court  sus- 
taining said  demurrers  and  exceptions,  and  dismissing  said  cause, 
the  plaintiffs  in  open  court  excepted.     (Rec.  p.  89.) 

And  said  cause  having  been  argued  and  submitted,  and  the 
Court,  for  the  proper  decision  of  same,  desiring  the  instructions 
of  the  Supreme  Court  of  the  United  States,  does  hereby  certify 
to  the  Supreme  Court  of  the  following  question  to  wit : 

"Where  a  contract  between  a  citizen  of  the  State  of  New  York 
and  a  citizen  of  the  State  of  Texas  is  entered  into,  made  and  exe- 
cuted in  the  State  of  New  York  for  the  sale  of  cotton  for  future 
delivery  upon  the  New  York  Cotton  Exchange,  pursuant  to  the 
rules,  regulations,  customs  and  usages  of  said  Exchange,  and  the 
(370) 


APPENDIX 

same  is  a  valid  exigible  contract  in  the  State  of  New  York,  does 
the  statute  of  the  State  of  Texas  (known  as  the  'Bucket  Shop 
Law')  passed  by  the  30th  Legislature  of  the  State  of  Texas,  in 
1907,  the  same  being  incorporated  in  the  Revised  Criminal  Sta- 
tutes of  Texas  (1911)  as  Chapter  3,  pages  141,  142,  or  any  public 
policy  therein  declared,  prevent  a  district  court  of  the  United 
States,  sitting  in  Texas,  wherein  a  suit  is  brought  to  recover  for 
breach  of  said  contract  from  granting  such  relief  as  otherwise  but 
for  such  statute  the  parties  would  be  entitled  to  have  and  receive? 

That  the  Supreme  Court  may  be,  if  desired,  more  fully  advised 
of  the  facts  in  the  case,  a  printed  copy  of  the  transcript  and  briefs 
will  be  transmited  with  this  certificate,  and  the  foregoing  is  ordered 
filed  by  the  Clerk. 

In  Witness  Whereof,  the  undersigned  Judges  affix  their  signa- 
tures, this  the  30th  day  of  March,  A.  D.  1915. 

(Signed)  Don  A.  Pardee, 

Circuit  Judge. 

R.  W.  Walker, 

Circuit  Judge. 

R.  M.  Call, 

District  Judge. 

United  States  of  America, 
Fifth  Judicial  Circuit,  ss: 

I,  Frank  H.  Mortimer,  Clerk  of  the  United  States  Circuit  Court 
of  Appeals  for  the  Fifth  Circuit,  do  hereby  certify  that  the  foregoing 
certificate  and  statement  of  facts  in  the  case  of  Allen  Bond,  et  al, 
Plaintiffs  in  Error,  versus  J.  L.  Hume,  Defendant  in  Error,  was 
duly  filed  and  entered  of  record  in  my  office  by  order  of  said  court, 
and,  as  directed  by  said  court,  the  said  certificate  is  by  me  for- 
warded to  the  Supreme  Court  of  the  United  States  for  its  action 
thereon. 

In  Testimony  Whereof,  I  have  hereunto  subscribed  my  name, 

(371) 


APPENDIX 

and  affixed  the  seal  of  said  court,  at  the  City  of  New  Orleans' 
Louisiana,  this  31st  day  of  March,  A.  D.  1915 

[Seal  United  States  Circuit  Court  of  Appeals,  Fifth  Circuit.] 

Frank  H.  Mortimer, 

Clerk  of  the  United  States  Circuit  Court  of 
Appeals  for  the  Fifth  Circuit. 


(372) 


PART  I 

INDEX 

[references  are  to  pages] 

A 
ABATEMENT, 

of  suit — death  of  a  party  pending  appeal  or  error 262 

ACT  OP  CONGRESS, 

Mar.  4,  1913,  interlocutory  injunctions — 

jurisdiction  of  Supreme  Court  on  direct  appeal  restricting  issuance 72 

orders  by  Administrative  Board  or  Commission 76 

Oct.  22,  1913,  appeals  from  interlocutory  injunctions — 

Interstate  Commerce  Cases — jurisdiction  Supreme  Court.. .  73,  74,  75,     76 
Criminal  Appeals  Act.     See  Criminal  Appeals  Act. 

corporations  organized  under — decisions  of  Circuit  Court  of  Appeals  re- 
viewable    Ill 

Sept.  6,  1916,  Highest  State  Court  decisions — how  reviewable  by  Supreme 
Court.     See  Highest  State  Court. 

misconstruction  of — The  Record 149 

claims  under — decisions  of  Highest  State  Court  reviewable  by  Supreme  Court  162 

River  and  Harbor  Act  of  1890 164 

Jan.  15,  1915,  making  trademark  and  copyright  decisions  final  in  U.  S. 

Circuit  Court  of  Appeals 80 

Jan.  28, 1915,  amending  Act,  Mar.  3,  1911 — jurisdiction  U.  S.  Circuit  Court 

of  Appeals 184 

Mar.  3,  1911,  amended  Jan.  28,  1915— jurisdiction  U.  S.  Circuit  Court  of 

Appeals 184 

Sept.  6,  1916,  jurisdiction  U.  S.  Supreme  Court  to  review  judgments  of 

Supreme  Court  of  Philippine  Islands 186 

Mar.  10,  1908,  appeal  to  U.  S.  Supreme  Court — 

certificate  from  Federal  judge  a  prerequisite — when 190 

Sept.  6,  1916,  time  for  appeal  to  Supreme  Court 208 

Mar.  3,  1891,  time  for  appeal  or  error  to  Circuit  Court  of  Appeals 208,  209 

Feb.  11,  1903,  time  for  appeal  or  error  in  civil  anti-trust  causes 209 

Feb.  13,  1911— C.  47,  36  Stat.  901— U.  S.  Comp.  Stat.  Supp.  1911 259 

appeal  or  error  from  final  judgment  or  decree — 

fee  of  clerk  of  Circuit  Court  of  Appeals  for  supervising  printing  of 

transcript  abolished 259 

Second  Circuit — practice 259 

(373) 


INDEX 

[references  are  to  pages] 

ADJUDICATION, 

final — what  constitutes 137 

order  of  judge  in  chambers  on  habeas  corpus 139  (a) 

ADMINISTRATIVE  BOARD, 

interlocutory  injunctions — orders  by 76 

cannot  restrain  public  officer — when 77 

orders — review  by  Supreme  Court 77 

ADMINISTRATIVE  ORDERS, 

not  reviewable  in  Supreme  Court  by  certiorari 127 

review  of 127 

ADMIRALTY, 

order  limiting  liability  appealable — how 23 

appeal — objection  to  evidence 47 

appeal  to  Circuit  Court  of  Appeals — procedure 94 

decision  of  Circuit  Court  of  Appeals — final  and  non-appealable 94 

certiorari  to  Supreme  Court 94 

bond — see  Bond. 

notice  of  appeal  to  Circuit  Court  of  Appeals 94 

prize  causes — jurisdiction  of  Supreme  Court  of  U.  S 94 

seizures  on  land 94 

time  to  appeal 94 

appeal  is  trial  de  novo 94,  95 

assignment  of  error — joint  appeals 95 

appeal — Statute 95 

apostles — see  Apostles. 

record  on  appeal 95 

how  made  up 95 

contents 97 

one  record  when  both  sides  appeal 97 

objections  to  evidence — how  availed  of 97 

stipulating  the  record 97 

filing  record — time  limit 97 

apostles — mandamus  may  be  awarded — when 98 

docketing  cases — when  apostles  are  printed 98 

new  pleadings  filed  in  Circuit  Court  of  Appeals — printing,  etc 98 

new  proof  in  Circuit  Court  of  Appeals  on  appeal — procedure — time  limit. .98,  99 

hearing    on    appeal — notice    limiting  questions 99 

Circuit  Court  of  Appeals  decree  not  reviewable  in  Supreme  Court Ill 

prohibition,  writ  of — issued  by  Supreme  Court — when 118 

Circuit  Court  of  Appeals  decree  reviewable  by  certiorari 128  (d) 

appeal  only  method  of  review 230 

(374) 


INDEX 

[references  are  to  pages] 

ADMIRALTY—  Continued 

appeal  to  Circuit  Court  of  Appeals  from  District  Court — procedure 230 

notice  of  appeal — filing  and  serving 230 

appeal  may  be  limited  to  specific  points 230 

rules  of  practice  of  Circuit  Court  of  Appeals 230 

rules  of  practice  of  District  Court  govern — when 230,  231 

supersedeas 231 

bond 231 

writ  of  inhibition 231 

appearance  by  appellee — time  for  entering 257 

failure  of  appellee  to  enter  appearance — effect 257 

motion  in  Supreme  Court — notice 270 

interest 278 

mandate  issues  when — Second  Circuit 280 

ADVERSE  CLAIMS, 

bankruptcy 90,  91,  92,      93 

AFFIDAVITS, 

exclusion    of    affidavits    on    motion    for    new  trial 44 

attached  to  plea  of  jurisdiction  considered  on  appeal  by  U.  S.  Supreme 
Court 62 

ALASKA, 

appeal  and  error  from  U.  S.  District  Court  to  U.  S.  Circuit  Court  of  Appeals, 
Ninth  Circuit — 

jurisdictional  amount 186,  187 

certifying  questions  to  U.  S.  Supreme  Court 186 

criminal  cases 186,  187 

capital  cases 187 

stipulation  as  to  place  of  hearing 186,  187 

appeal  and  error  from  District  Court  lies  direct  to  U.  S.  Supreme  Court — 

when 187,  208 

time  for  return  of  appeal,  error  or  citation 222,  256 

ALIENS, 

non-resident  alien — construction  Federal  treaties 72 

Fourteenth  Amendment  to  Constitution  includes  aliens 154 

AMENDMENTS  TO  U.  S.  CONSTITUTION. 

See  Federal  Constitution,  Laws  and  Treaties;  Federal  Questions;  Federal 
Judicial  Code;  Fifth,  Seventh,  Fourteenth  Amendments. 

ANTI-TRUST  CAUSES, 

civil — time    for    appeal    to    Supreme    Court 208 

(375) 


INDEX 
[references  are  to  pages] 

APOSTLES.     See  Admiralty;  Record  on  Appeal. 

Admiralty 95 

stipulating  as  to  contents 97 

filing  apostles — time  limit 97,  98 

mandamus  may  be  awarded — when 98 

new  pleadings  filed  in  Circuit  Court  of  Appeals 98 

new    proof    in    Circuit    Court    of    Appeals — procedure — time    limit.  98 

APPEAL.  See  also  Appeal  and  Error ;  Appellate  Procedure ;  Certiorari ;  Highest 
State  Court;  Jurisdiction;  Jurisdictional  Amount;  Petition  to  revise; 
Time;  Review;  Writ  of  Error. 

general  definition 3 

time  for  appeal.     See  Time. 

in  equity — law  and  fact  reviewed 25 

criminal  cases.     See  Writ  of  Error ;  Criminal  Cases. 

admiralty.     See  Admiralty. 

decrees  appealable.     See  Chapter  II;  Federal  Decisions — How  and  When 
Reviewable. 

who  may  appeal  or  seek  review — 

parties  to  record 32 

insane  person — by  next  friend 33 

intervenors 36,     37 

party  added  by  order  of  court  may  appeal 34 

receivers 34,     35 

purchaser  at  judicial  sale  may  appeal — when 35 

who  must  join  in  appeal 33 

severance 35,  36,  141 

bankruptcy.     See  Bankruptcy;  U.  S.  Circuit  Court  of  Appeals;  Certiorari; 
Petition  to  Revise. 

injunctions.     See  Injunctions. 

appeal  from  interlocutory  orders,  injunctions,  receiverships — effect  on  pend- 
ing cause 101,  102 

joint  appeals — admiralty 94 

two  appeals  not  permissible — when 112 

cross-appeals  direct  to  U.  S.  Supreme  Court 68 

habeas  corpus.     See  Habeas  Corpus;  Appeal  and  Error. 

assignment  of  errors.     See  Assignment  of  Errors;  Appellate  Procedure. 

record.     See  Record. 

record  in  equity.     See  Record  in  Equity. 

bond.     See  Bond;  Appellate  Procedure;  Forms. 

citation.     See  Citation;  Appellate  Procedure. 

supersedeas.     See  Supersedeas;  Appellate  Procedure. 

bill  of  exceptions.     See  Bill  of  Exceptions;  Writ  of  Error. 

appellate  jurisdiction — when  retained 5,  6,     70 

(376) 


INDEX 
[references  are  to  pages] 

APPEAL—  Continued 

by  Government — criminal  cases — when 38 

from  part  of  decree  permissible — when 220  et  seq. 

effect  of  perfecting  appeal — jurisdiction  transferred — when 227 

application  for  rehearing  in  lower  court  after  appeal  perfected 228 

appeal  as  a  matter  of  right — when 228 

setting  aside  appeal 228 

second  appeal — 

when  allowed 229 

time 229 

mistake  as  to  proper  remedy 229 

second  appeal  subsequent  to  mandate 228,  229 

review  limited 229 

not  entertained — when 230  et  seq. 

direct  to  U.  S.  Supreme  Court  from  U.  S.  District  Court.     See  Supreme 

Court  of  U.  S. 
from  U.  S.  Circuit  Court  of  Appeals  to  U.  S.  Supreme  Court.     See  Supreme 

Court  of  U.  S. 
from  Court  of  Claims  to  Supreme  Court.     See  Court  of  Claims, 
from  U.  S.  District  Court  to  U.  S.  Circuit  Court  of  Appeals.     See  U.  S.  Cir- 
cuit Court  of  Appeals, 
from  various  Territorial  Courts.     See  District  of  Columbia;  Porto  Rico; 

Hawaii;  Philippine  Islands;  Alaska. 
to  Court  of  Customs  Appeals.     See  Court  of  Customs  Appeals, 
trial  before  the  Court  in  common  law  cases.      See  Trial  before  the  Court  in 

Common  Law  Cases, 
procedure  in  the  appellate  courts.     See  Appellate  Procedure ;  Record ;  Time. 

petition  for  writ  of  error  in  common  law  civil  action — form 370 

forms.     See  Forms. 

APPEAL  AND  ERROR.     See  also  Appeal;  Appellate  Procedure;  Certiorari; 

Jurisdiction;  Jurisdictional  Amount;  Petition  to  Revise;  Time;  Review; 

Writ  of  Error. 

general  definition  of  appeal 3 

general  definition  of  writ  of  error 3 

distinction  maintained 4 

constitutional  provision 4 

jurisdiction  the  fundamental  question 5 

appellate  jurisdiction — when  retained 5,  6,     70 

jurisdiction  generally.     See  Jurisdiction,  Supreme  Court  of  U.  S.;  U.  S. 

Circuit  Court  of  Appeals. 

mistake  in  choice  of  remedy  no  longer  fatal — Act  Sept.  6,  1916 16,     17 

when  advisable  to  use  both 17 

who  must  join  in  appeal  or  error 33 

(377) 


INDEX 
[references  are  to  pages] 

APPEAL  AND  ERROR— Continued 

Federal  Court — distinction  between  appeal  and  error 16 

time  for  appeal  or  error.     See  Time. 

in  equity — law  and  fact  reviewed 25 

criminal  cases.     See  Writ  of  Error;  Criminal  Cases. 

decrees  appealable.     See  Chapter  II;  Federal  Decisions — How  and  When 

Reviewable. 
Who  may  appeal  or  seek  review — 

parties  to  record 32 

insane  person — by  next  friend 33 

intervenors 36,  37 

party  added  by  order  of  court  may  ask  review 34 

statutory  receiver  of  corporation  may  sue  out  writ  of  error 34 

common  law  receiver  cannot  appeal 34 

purchaser  at  judicial  sale  may  appeal — when 35 

separate  appeal  permitted — when 34 

severance 35,  36,  141 

severance  of  record — 

procedure 35 

when  appeal  or  error  will  be  dismissed 36 

leave  to  appeal  compelled  by  mandamus 36 

appeal  by  Government  in  Criminal  cases — when 38 

frivolous  Federal  questions  cause  for  dismissal 71,  150 

injunctions.     See  Injunctions. 

appeal  from   interlocutory   orders,    injunctions,    receiverships — effect   on 

pending  cause 101,  102 

joint  appeals — admiralty 94 

cross-appeals  direct  to  U.  S.  Supreme  Court 68 

two  appeals  not  permissible — when 112 

two  appeals  to  save  remedy — how  disposed  of 112 

jurisdictional  amount  not  required — when 113 

Patent  cases 113 

copyright  cases 1 13 

actions  for  enforcement  of  revenue  laws 113 

actions  against  revenue  officers 113 

judgments  and  decrees — deprivation  of  rights  of  citizens  under  Federal 

Constitution 113 

(See  also  Supreme  Court  of  U.  S.) 

judgments    for    injuries    by    conspirators    against    civil    rights.  ...  113 

erroneous    interpretation    of    mandate    of    Circuit    Court    of    Appeals.  114 
reversal  in  Circuit  Court  of  Appeals — appeal  does  not  lie  direct  to  Supreme 

Court,  when 114 

habeas  corpus.     See  Habeas  Corpus. 

deportation  cases.     See  Habeas  Corpus;  Deportation  Cases. 

(378) 


INDEX 

[references  are  to  pages] 

APPEAL  AND  ERROR— Continued 

extradition  cases.     See  Habeas  Corpus;  Extradition  Cases. 

former  jeopardy.     See  Habeas  Corpus;  Former  Jeopardy. 

under  process  of  the  House  of  Representatives.     See  Habeas  Corpus;  House 
of  Representatives. 

contempt.     See  Contempt. 

mandamus.     (See  also  Mandamus.) 

allowed    in    absence    of    appellate    remedy — when 118 

to  compel  Circuit  Court  of  Appeals  to  take  jurisdiction  of  writ  of 
error 206 

appellate  procedure.     See  Appellate  Procedure;  Time. 

preliminary  steps  for  securing  appeal  or  error.     See  Appellate  Procedure. 

assignment  of  errors.     See  Assignment  of  Errors;  Appellate  Procedure. 

transcript  of  Record.     See  Record ;  Appellate  Procedure. 

record.     See  Record;  Appellate  Procedure. 

record  in  equity.     See  Record  in  Equity. 

citation.     See  Citation;  Appellate  Procedure. 

bond.     See  Bond;  Appellate  Procedure;  Forms. 

supersedeas.     See  Supersedeas ;  Appellate  Procedure. 

bill  of  exceptions.     See  Bill  of  Exceptions ;  Appellate  Procedure. 

review  limited  to  errors  assigned 215,  216 

cross-assignments  of  errors  not  permitted — cross-appeals 219 

by  both  parties — one  record  sufficient 219 

from  part  of  judgment  or  decree  permissible — when 220 

effect  of  perfecting  appeal  or  error — 

jurisdiction  transferred — when 227 

bond  filed  and  approved — effect 227 

application  for  rehearing  in  lower  court  after  appeal  or  error  per- 
fected    228 

matter  of  right — when 228 

setting  aside  appeal 228 

second  appeal  or  error — 

when  allowed 229 

time 229 

mistake  as  to  proper  remedy 229 

second  appeal  subsequent  to  mandate 229,  230 

review  limited  to  proceedings  subsequent  to  mandate 229 

not  entertained — when 230 

admiralty.     See  Admiralty. 

bankruptcy.     See  Bankruptcy;  U.  S.  Circuit  Court  of  Appeals;  Petition  to 
Revise;  Bankruptcy  Act;  Certiorari. 

no  appeal  to  Supreme  Court  from  Circuit  Court  of  Appeals 117 

(See  also  Certiorari.) 

certiorari  will  not  lie  where  an  appeal  may  be  taken 127,    128 

(379) 


INDEX 
[references  are  to  pages] 

APPEAL  AND  ERROR—  Continued 

certiorari  and  writ  of  error  may  be  resorted  to — when 129 

to  Supreme  Court  from  District  Court — not  permissible — when 112 

to  Supreme  Court  of  U.  S.  or  U.  S.  Circuit  Court  of  Appeals — when 

optional 68 

direct  to  U.  S.  Supreme  Court  from  U.  S.  District  Courts.     See  Supreme 
Court  of  the  United  States  (Appeal  and  Error  from  U.  S.  District  Courts 

direct  to  Supreme  Court) 59-78  inc. 

direct  to  U.  S.  Supreme  Court  from  Territorial  U.  S.  District  Courts — when  183 
direct  to  U.  S.  Supreme  Court — 

from  courts  of  Alaska.     See  Alaska, 
from  courts  of  Hawaii.     See  Hawaii, 
from  courts  of  Porto  Rico.     See  Porto  Rico. 
from  courts  of  Philippine  Islands.     See  Philippine  Islands, 
from  Court  of  Appeals  of  District  of  Columbia.     See  District  of  Colum- 
bia (Court  of  Appeals), 
appeal  and  error  lies  to  Supreme  Court  from  Circuit  Court  of  Appeals — 

when 109,  1 12 

practice — rules    for 109 

jurisdictional  amount 109,  112 

judgment  must  be  final 109,  1 10 

judgment  appealable — when 110 

ground  of  jurisdiction — how  extended Ill 

to  U.  S.  Circuit  Court  of  Appeals — when 80,  81,     82 

from  U.  S.  District  Court 80 

(See  also  U.  S.  District  Court.) 
from  courts  of  Alaska.     See  Alaska, 
from  courts  of  Hawaii.     See  Hawaii, 
from  courts  of  Porto  Rico.     See  Porto  Rico, 
from  courts  of  Philippine  Islands.    See  Philippine  Islands, 
from  Court  of  Appeals  of  District  of  Columbia.     See  District  of  Colum- 
bia (Court  of  Appeals). 
Court  of  Claims — review  in  Supreme  Court  of  U.  S.     See  Court  of  Claims, 
highest  State  Court  decisions — review  by  Supreme  Court  of  U.  S.     See 

Highest  State  Court. 
to  Court  of  Customs  Appeals.     See  Court  of  Customs  Appeals, 
from  Federal  Trade  Commission  to  U.  S.  Circuit  Court  of  Appeals. .  104, 105,  106 
from  U.  S.  District  Courts.     See  U.  S.  District  Court, 
from  Court  of  Appeals  of  District  of  Columbia.     See  District  of  Columbia 

(Court  of  Appeals), 
from  courts  of  Alaska.     See  Alaska, 
from  courts  of  Hawaii.     See  Hawaii, 
from  courts  of  Porto  Rico.     See  Porto  Rico. 
from  courts  of  Philippine  Islands.     See  Philippine  Islands. 

(380) 


INDEX 
[references  are  to  pages] 

APPEAL  AND  ERROR—  Continued 

from  various  Territorial  Courts.     See  District  of  Columbia ;  Alaska ;  Hawaii ; 

Porto  Rico;  Philippine  Islands, 
trial  before  the  court  in  common  law  cases.     See  Trial  before  the  Court  in 

Common  Law  Cases, 
procedure  in  the  appellate  courts.     See  Appellate  Procedure ;  Record ;  Time, 
forms.     See  forms. 

APPEARANCE 

voluntary — confers    jurisdiction    over    person 8 

of  counsel — on  appeal  to  U.  S.  Supreme  Court 257 

admiralty — appearance  by  appellee — time 257 

form — order  for  appearance 413 

APPELLATE  JURISDICTION.  See  Jurisdiction;  Supreme  Court  of  the 
United  States ;  U.  S.  Circuit  Court  of  Appeals ;  Certiorari ;  Highest  State 
Court ;  Court  of  Claims ;  Court  of  Customs  Appeals ;  Territorial  Courts. 

when  retained 5,       6 

Circuit  Court  of  Appeals 80 

entertained — when 81 

power  to  issue  Writs  of  Prohibition  and  Mandamus  in  aid  of 82 

attaches — when 82 

scheme  of 112 

mandamus  issued  in  aid  of  appellate  jurisdiction 118 

habeas  corpus — writ  issued  in  aid  of 190 

APPELLATE  PROCEDURE.     See  also  Procedure. 

I.      PRELIMINARY  STEPS  FOR  SECURING  APPEAL  OR  WRIT  OF  ERROR — 

time  for  appeal,  etc.,  to  Supreme  Court 208 

time  for  certiorari  to  Supreme  Court  of  Philippine  Islands 208 

time  for  appeal  or  error  to  U.  S.  Circuit  Court  of  Appeals 208,  209 

interlocutory  appeals — time 209 

civil  anti-trust  causes — time  to  appeal 209 

capital  cases — time  to  sue  out  writ  of  error 209 

appeal  or  error — 

date  of  allowance  not  material — when 209 

time  may  be  extended — when 210 

time — how  calculated 210 

time  commences  to  run — when 210 

time  cannot  be  extended  by  stipulation 210 

to  Supreme  Court  of  U.  S.  from  District  Court — who  may  allow 211 

to  Circuit  Court  of  Appeals  from  District  Court — who  may  allow 211 

power  of  judge  of  Circuit  Court  of  Appeals 211 

(381) 


INDEX 
[references  are  to  pages] 

APPELLATE  PROCEDURE— Continued 

bankruptcy  appeals — special  procedure 211,  212 

who  may  allow 212 

time  to  appeal 212 

record  on  appeal — contents 212 

joint  parties 212 

appeal  and  error  from  District  Court  direct  to  Supreme  Court — petition 

and  assignment  of  errors 212,  213 

appeal  and  error  from  District  Court  to  Circuit  Court  of  Appeals,  Second 

Circuit — petition  and  assignment  of  errors 212,  213 

appeal  and  error — order  allowing  same 213 

writ  of  error — 

how  issued  and  served 213 

absence  of  seal 213 

filing 213,  214 

form 214 

describing  the  parties 214 

amendment  of  writ 214,  215 

inserting  name  of  party  omitted  by  mistake 215 

appeal  and  error — 

assignment  of  errors — necessity  for 215,  216 

prayer  for  reversal 215,  216 

assignment  of  errors — 

cannot  enlarge  Federal  question  as  made  by  record 215 

no  assignment  of  errors — appeal  or  error  not  allowed 215,  216 

review  limited  to  errors  assigned 215,  216 

form 216 

held  bad— when 216,  217,  218 

held  good — when 218 

appeal  from  decree  confirming  Master's  report 218 

plain  error  unassigned 219 

cross-assignments  of  errors  not  permitted — cross-appeals 219 

appeal  by  both  parties — one  record  sufficient 219 

appeal  and  error — 
bond.     See  Bond, 
from  part  of  judgment  permissible — when  bond  need  not  be  signed  by 

all  appellants 219 

citation.     See  Citation, 
supersedeas.     See  Supersedeas, 
effect  of  perfecting  appeal  or  error — 

jurisdiction  transferred — when 227 

bond  filed  and  approved — effect 228 

application  for  rehearing  in  lower  court  after  appeal  or  error  per- 
fected    228 

(382) 


INDEX 
[references  are  to  pages] 

APPELLATE  PROCEDURE—  Continued 

appeal  or  error — matter  of  right 228 

setting  aside  appeal 228 

second  appeal  or  error — 

when  allowed 229 

time 229 

effect  of  mistake — remedy 229 

second  appeal  subsequent  to  mandate 229 

review — how  limited 229 

not  entertained — when 229,  230 

admiralty.     See  Admiralty. 

II.      THE  RECORD — 

RECORD.    See  also  Record. 

definition 232 

record  cannot  be  impeached 232 

duplications  in  record  not  permitted 232 

"common  law  record" — contents 233 

papers  in  record — how  incorporated  and  certified 233 

opinions  of  court  are  part  of  record 233 

writ  of  error — 

record  how  made  and  returned — The  Statute 234 

diligence  required  of  plaintiff  in  error 234 

Rule  8  of  Supreme  Court  of  U.  S 234 

Rule  14  of  Circuit  Court  of  Appeals,  Second  Circuit 234 

bill  of  exceptions  must  be  included 234 

praecipe  to  be  filed 235 

notice 235 

time  to  designate  portions  of  record 235 

practice  in  Supreme  Court  of  U.  S 235 

practice  in  Circuit  Court  of  Appeals 235 

common  law  requisites  must  be  included 235 

stipulating  portions  of  record 236 

time  for  return  of  record 236 

extension 236 

must  be  complete 236 

reference  to  other  record  not  permitted 236 

docketing  cause  in  appellate  courts — 

time 255 

time  enlarged — how 255,  256 

failure  to  comply  with  rule^effect 255 

fees  and  deposits 256 

appellee  or  defendant  in  error  may  docket  cause 255,  256 

(3S3) 


INDEX 
[references  are  to  pages] 

APPELLATE  PROCEDURE— Continued 

filing  record  in  appellate  courts — 

time 255 

time  extended,  how 255,  256 

failure  to  comply  with  rule — effect 255 

failure  to  file   record  in  time  deprives  appellate  court  of  jurisdic- 
tion    256 

rules  are  directory  only 258 

motion  to  dismiss  for  failure  to  file  in  time 273 

settling  the  record 258 

time  for  filing  statement  of  errors 258 

printing  the  record — 

clerk  to  demand  estimated  cost 258,  259 

time  for  paying  estimated  cost  of  printing  record 258  et  seq. 

time  for  designating  parts  to  be  printed 258,  259 

time  for  designating  additional  parts  to  be  printed 259 

court  may  direct  printing  of  other  parts 259 

material  part  of  record  not  printed — effect  of 258,  259 

unnecessary  parts  of  record  printed — effect  of 258,  259 

fees  of  clerk 258-260 

appeal  or  error  from  final  judgment  or  decree — 

Fee  of  clerk  of  Circuit  Court  of  Appeals  for  supervising  printing  of 

transcript  abolished 259 

Second  Circuit — practice 259 

Time  for  serving  and  filing  copies  of  transcript 259 

number  of  copies  to  be  printed,  etc 259 

clerk  cannot  charge  when  printed  copies  are  supplied 260 

costs  for  preparing  record 258,  259,  260 

manuscript  copy  of  record — costs 260 

filing  printed  records  used  in  court  below 260,  261 

time  for  filing  and  serving 260,  261 

number  of  copies 260,  261 

certiorari 261 

filing  printed  record  used  in  State  court  in  U.  S.  Supreme  Court 261 

number  of  copies  to  be  filed 261 

cost  of  printing  the  record  to  be  taxed  against  losing  party 261 

exception — judgment  against  the  United  States 261 

appeal,  error,  and  citations — 

time  for  return 256 

time  for  serving 256 

appeal  to  U.  S.  Supreme  Court — 

appearance  of  counsel 257 

counsel  must  be  member  of  the  Bar  of  Supreme  Court  of  U.  S 257 

counsel  must  sign  individual  name 257 

(384) 


INDEX 
[references  are  to  pages] 

APPELLATE  PROCEDURE— Continued 
admiralty — 

appearance  by  appellee — time  for  entering 257 

failure  of  appellee  to  enter  appearance — effect 257 

writ  of  error — 

time  for  return 257 

death  of  a  party  pending  appeal  or  error — procedure 262,  263 

mandamus — effect  of 262 

death  of  officer  abates  suit 262 

substitution  will  not  be  permitted — when 262 

time  for  representatives  to  become  parties 262 

before  appeal  or  error — no  representative  within  the  jurisdiction  of 

court — procedure 262,  263 

time  for  representative  to  become  party 263 

certiorari  for  diminution  of  record 263,  264 

motion  for — requisites 263 

time  for  making  motion 263 

motion  denied  for  negligence  in  preparation  of  record 264 

PROCEEDINGS  AFTER  DOCKETING  CAUSE— 

printed  records,  briefs,  and  arguments — U.  S.  Supreme  Court — form 

and  size 264 

printed   records,    briefs,    and    arguments — U.    S.    Circuit    Courts    of 
Appeals — form  and  size — 

First  Circuit 264 

Second  Circuit 264 

Third  Circuit 264 

Fourth  Circuit 264 

Fifth  Circuit 265 

Sixth  Circuit 265 

Seventh  Circuit 265 

Eighth  Circuit 265,  266 

Ninth  Circuit 266 

briefs — U.  S.  Supreme  Court 267 

time  for  filing  same 267 

number  of  copies 267 

one  to  be  signed  in  ink  by  counsel * 267 

exchange  of  briefs  required — when 267 

contents 268 

subject  index  and  alphabetical  list  of  cases  necessary — when 268 

specifying  pages  of  record  in  brief 268 

citation  of  doubtful  authorities 268 

specification  of  errors  in  brief  essential 269 

briefs  stricken  for  scandal  and  impertinence 269 

failure  to  file  brief — effect  of 269 

(385) 


INDEX 
[references  are  to  pages] 

APPELLATE  PROCEDURE— Continued 

PROCEEDINGS  AFTER  DOCKETING  CAUSE— Continued 

assignment  of  errors — failure  to  file  same — effect  of 269 

where  no  question  of  law  is  presented,  Supreme  Court  will  not  review  case  269 

dismissal  for  failure  to  file  assignment  of  errors  or  brief 269 

printed  arguments  and  briefs — 

time  for  submitting  same 270 

appeals  from  Court  of  Claims 270 

number  of  copies  to  be  filed 270 

oral  argument  by  one  party — effect  of 270 

must  be  served 270 

motions  in  Supreme  Court 270,  271 

in  writing 270 

contents 270 

heard — when 270 

time  for  argument 271 

admiralty  appeals — notice 271 

motions  in  Circuit  Court  of  Appeals — 

in  writing 271 

contents 271 

time  for  argument 271 

notice 271 

motions  to  dismiss  or  affirm — 

general  practice  in  Supreme  Court 271 

general  practice  in  Circuit  Court  of  Appeals 271 

heard  on  briefs  only 271 

rule  of  Supreme  Court 272 

notice — time 272 

when  appeal  taken  for  delay 272 

frivolous  questions 272 

notice  necessary  on  motion  to  dismiss 272 

dismissal  of  appeal  or  error — 

before  record  is  printed — when 272 

where  question  is  foreclosed  by  prior  decisions 273 

presumption  against  granting  motion 273 

lack  of  jurisdiction  apparent 273 

for  failure  to  file  bill  of  exceptions,  citation,  and  bond 273 

by  consent 274 

by  appellant 274 

placing  cause  on  summary  docket 273 

time  for  oral  argument 273,  274 

precedence — advancing  causes  on  motion 274,  275 

revenue  cases 274 

criminal  cases 275 

(386) 


INDEX 

[references  are  to  pages] 

APPELLATE  PROCEDURE— Continued 

PROCEEDINGS  AFTER  DOCKETING  CAUSE—  Continued 
procedure — Continued 

motions  must  be  printed 275 

appeal  and  error  to  Supreme  Court  on  question  of  j  urisdiction  only  275 

habeas  corpus  case 275 

law  library  of  U.  S.  Supreme  Court — use  of 275 

hearing  of  the  cause 276 

consolidation  of  actions  for  hearing 276 

passing  and  reinstating  cause 276 

oral  arguments — Supreme  Court 277 

opening  and  concluding  arguments  by  who  in 277 

number  of  counsel  heard  for  each  party 277 

only  one  counsel  heard — when 277 

time  for  argument 277 

failure  to  appear  or  file  brief — effect  of 277 

of  plaintiff  in  error  or  appellant 277 

of  defendant  in  error  or  appellee 277 

of  either  party 277 

at  second  term 277 

rehearing — time  for  petition 278 

order  staying  mandate — effect  of 278 

criminal  cases — rehearing  by  Government 278 

interest 278,  279 

on  affirmance — Supreme  Court 278 

in  equity 279 

in  admiralty 279 

costs — 

on  dismissal 279 

on  affirmance 279 

on  reversal 279 

United  States  a  party 279 

inserted  in  mandate 279 

applied  to  §§  238-241  Fed.  Jud.  Code 279 

damages  for  delay  on  affirmance  in  error 279,  280 

opinions  of  court 280 

mandates  issue — when 280 

admiralty — Second  Circuit 281 

recalling  mandate 281 

bill  of  review — procedure 281,  282 

bill  of  review  for  errors  of  law  not  entertained 283 

power  of  court  to  amend  its  own  judgments 282 

attorneys  and  counsellors — U.  S.  Supreme  Court — general  provisions. .  283 

process — U.  S.  Supreme  Court 284 

(387) 


INDEX 
[references  are  to  pages] 

ARGUMENTS, 

Supreme  Court  of  U.  S. — 

printed  arguments — 

form  and  size 264 

time  for  submitting  same 264 

appeals  from  Court  of  Claims 270 

number  of  copies  to  be  filed 270 

must  be  served 270 

oral  arguments — 

by  one  party — effect  of 270 

time  for  oral  argument  of  cause  on  summary  docket 273,  274 

opening  and  concluding  arguments  by  whom 277 

number  of  counsel  heard  for  each  party 277 

only  one  counsel  heard — when 277 

time  for  argument 277 

U.  S.  Circuit  Court  of  Appeals — 

printed  arguments — form  and  size 264,  265,  266 

ARREST, 

civil  proceedings — order  denying  motion  to  discharge  interlocutory 24  (e) 

orders  in  arrest  cases  not  reviewable  on  direct  appeal  to  Supreme  Court  from 
District  Court — when 63 

ASSIGNMENT  OF  ERRORS, 

prayer  for  reversal 215,  216 

refusal  to  entertain  motion  for  new  trial 43 

excluding  affidavits  on  motion  for  new  trial 44 

refusal  of  court  to  exercise  discretion 44 

error  in  excluding  material  evidence 47 

motion  to  withdraw  case  from  jury — when  to  be  made 47 

error  in  instructing  jury — exception  necessary 49 

admiralty — joint  appeals 95 

setting  up  Federal  claim  for  first  time — when  proper 144 

insufficient  to  prove  Federal  question  raised  below 145 

Court  of  Customs  Appeals 178 

appeal  and  error  from  District  Court  direct  to  Supreme  Court 212,  213 

appeal  and  error  from  District  Court  to  Circuit  Court  of  Appeals 212,  213 

necessity  for 215,  216 

cannot  enlarge  Federal  question  as  made  by  record 215 

no  assignment  of  errors — 

appeal  or  error  not  allowed 215,  216 

counsel  will  not  be  heard 214 

review  limited  to  errors  assigned 215,  216 

form 216 

(See  also  Forms.) 

(388) 


INDEX 

[references  are  to  pages] 

ASSIGNMENT  OP  ERRORS— Continued 

bad— when 216,  217,  218 

general  assignments  of  errors  not  entertained 217 

Master's  report — appeal  from  decree  confirming  same 218 

good — when 218 

plain  error  unassigned 219 

cross-assignments  of  errors  not  permitted — cross-appeals 219 

purpose  of 239 

failure  to  file  same  in  Supreme  Court — effect  of 269 

forms.     See  Forms. 

ATTORNEYS, 

decisions  affecting — reviewable  by  mandamus  only 30,  31 

disbarment — reviewable  by  mandamus  only 30,  31 

Supreme  Court  entertains  supervisory  jurisdiction 31 

rights  of  attorneys 31 

Court  of  Customs  Appeals 177 

certificate  of  admission,  fee 180 

contempt  of  court 200 

record  in  equity — 

taxing  costs  against  attorneys — when 249 

costs  for  infraction  of  rules  of  court 250 

appearance  of  attorney  on  appeal  to  U.  S.  Supreme  Court — 

must  be  member  of  Bar  of  Supreme  Court  of  U.  S 257 

must  sign  individual  name 257 

oral  arguments — 

number  of  counsel  heard  for  each  party 277 

only  one  counsel  heard — when 277 

Supreme  Court  of  U.  S. — 

general  provisions  for  admission  to  practice,  etc 283 


B 

BANKING  LAWS  OF  U.  S. 

questions  under 164,  165 

BANKRUPTCY.     See  Bankruptcy  Act;  Certiorari;  Petition  to  Revise;  U.  S. 
Circuit  Court  of  Appeals ;  Summary  Proceedings ;  Adverse  Claims. 

judgment  after  adjudication — how  reviewable 33 

bankrupt  may  appeal  in  his  own  name — when 33 

dismissal  of  proceedings  for  lack  of  jurisdiction — how  reviewable 63 

Circuit  Court  of  Appeals — jurisdiction 82,  83 

Bankruptcy  Act,  §§  24,  25 — provisions  of 83 

(389) 


INDEX 
[references  are  to  pages] 

BANKRUPTCY—  Continued 

Circuit  Court  of  Appeals — power  to  review  and  revise 83 

appeal  to  Circuit  Court  of  Appeals — when  permissible 83 

time  to  appeal  to  Circuit  Court  of  Appeals 83 

Circuit  Court  of  Appeals  decisions  final — reviewable  only  by  certiorari 83 

proceedings  in  bankruptcy — definition 83,  84 

controversies  at  law  and  in  equity  arising  in  bankruptcy  proceedings — 

definition 84 

distinction  between  "  proceedings  "  and  "  controversies  at  law,  etc. " 84,  86 

mode  of  review — Circuit  Court  of  Appeals 85 

petition  to  revise — time  for  serving  and  filing 86 

petition  to  revise — form 394 

petition  to  revise — answer  to — form 402 

appeal  and  petition  to  revise  exclusive  of  each  other 86 

petition  to  revise — when  used 87,  88 

decisions  and  orders  of  District  Court  reviewable  by  petition  to  revise  .  87,  88 

summary  proceedings — how  reviewable 87 

evidence  reviewable  by  petition  to  revise 88 

questions  of  law  only  reviewable  by  petition  to  revise 88 

election  of  trustee — how  reviewable 88 

appeals  to  Circuit  Court  of  Appeals  from  judgments  of  $500,  etc 89,  90 

intervention — reviewable  by  appeal 89,  90 

plenary  suits — when  necessary 90,  91 

summary  proceedings 90,  91 

summary  jurisdiction  of  Bankruptcy  Court — test  of 90,  91 

adverse  claims 90,  91,  92,  93 

referee  without  jurisdiction  adverse  claims — when 93 

plea  to  jurisdiction — how  denied 93 

evidence  on  general  inquiry  competent  only  on  question  of  jurisdiction. ...  93 

findings  of  referee  not  conclusive 94 

Federal  court  may  enjoin  proceedings  in  State  court — when 103 

appeal  to  Supreme  Court  from  Circuit  Court  of  Appeals  does  not  lie.     See 

Certiorari 112,  113 

questions  of  law  may  be  certified  to  Supreme  Court  by  Circuit  Court  of 

Appeals 116 

jurisdiction  of  Supreme  Court 117 

review  by  Supreme  Court  limited  to  certiorari 117 

bankruptcy  laws  of  U.  S. — claims  under 166 

State  court  decisions  reviewable — when 166 

inability  of  Bankrupt  to  comply  with  order — contempt  of  court 201 

civil  contempt  reviewable  by  petition  to  revise 211,  206 

appeals — Special  Procedure 211,  212 

who  may  allow  appeal 21*2 

time  for  appeals 212 

(390) 


INDEX 

[references  are  to  pages] 

BANKRUPTCY—  Continued 

record  on  appeal — 

contents 212,  250,  251 

joint  parties 212 

Forms.     See  Forms. 


BANKRUPTCY  ACT, 

§§  24,  25 — jurisdiction  Circuit  Court  of  Appeals 83 

§  246 — Circuit  Court  of  Appeals — power  to  review  and  revise 83 

§  25 — appeal  to  Circuit  Court  of  Appeals — when  permissible 83 

§  25 — time  to  appeal  to  Circuit  Court  of  Appeals 83 

§§  23,  24,  25— construction  of 83 

§  24  (b) — construction  of 86 

§  25 — Clause  3 — appeals  under 88 

BANKRUPTCY  COURT, 

test  of  summary  jurisdiction 92 

jurisdiction  to  take  actual  possession  of  property 91,     92 

contempt  of  Court 199,  200 

interference  with  property  in  custody  of 200,  201 

inability  of  Bankrupt  to  comply  with  order 201 

BANKRUPTCY  LAWS  OF  UNITED  STATES, 

claims  under 166 

State  court  decisions — when  reviewable 165 


BILL  OF  COMPLAINT, 

constitutional  questions  must  be  specific  therein 69 

decree  pro  confesso — review  limited  to  legal  sufficiency  of  bill  of  com- 
plaint       21 

BILL  OF  EXCEPTIONS, 

definition 237 

motions  made  dehors  the  record 238 

unnecessary  for  review — when 238,  246 

defective  bill — warning  of  the  consequences — 

by  Circuit  Court  of  Appeals,  Fourth  Circuit 238 

by  U.  S.  Supreme  Court 238,  239 

form 239 

(See  also  Forms.) 

purpose  of 239 

(391) 


INDEX 
[references  are  to  pages] 

BILL  OF  EXCEPTIONS—  Continued 

contents — requisites 239 

errors  of  law  must  be  pointed  out 240 

substantial  controversy  must  be  presented  by 240 

evidence — 

how  preserved  and  exceptions  saved 240 

entire  evidence  necessary — when 240,  241 

exceptions  to  charge  to  jury — 

Supreme  Court  of  U.  S. — rule 241 

Circuit  Court  of  Appeals,  Second  Circuit — rule 241 

must  be  taken  before  jury  retire 242 

general  exception  to  whole  charge  insufficient — when 241,  242 

documents — how  identified 241 

evidence — objecting  to  evidence  because  complaint  does  not  state  cause  of 

action 241 

ruling  by  trial  court  essential 242,  243 

objections  must  be  specific 243 

exceptions  must  be  specific 243 

State  court  practice  not  followed 243 

signed  and  settled  by  whom 243 

time  for  signing  and  settling 243 

one  or  several  bills 244 

must  show  that  exceptions  were  taken  at  trial 244 

New  York — Southern  District — 

time  for  signing  bill  of  exceptions 244,  245 

adjournments  during  term  for  settling,  allowing,  signing,  or  filing 245 

extension  of  time  by  consent  of  parties 245 

reservation  by  order  or  consent 245 

trial  before  the  court  in  common  law  cases — review  by  Supreme  Court — 

special  findings — the  Statute 245 

request  for  findings  necessary 246 

mere  general  finding  not  reviewable 246 

effect  of  findings  of  fact 246 

findings  of  fact  not  reviewable  by  writ  of  error 246 

rulings  and  proceedings  must  be  preserved  by  bill  of  exceptions 246 

exception  to  finding  unnecessary — when 246 

exception  to  ruling  unnecessary — when 246 

inferences  in    absence  of    findings    cannot    be    drawn    by  appellate 

court 246 

agreed  statement  of  facts  considered  as  special  findings — when 247 

charge  to  jury  must  be  preserved  in  bill  of  exceptions 52 

certification  of  jurisdictional  question — how  presented  by 65 

record  on  appeal  must  include  bill  of  exceptions 234,  235 

form.     See  Forms. 
(392) 


INDEX 
[references  are  to  pages] 

BILL  OP  REVIEW, 

procedure 281,  282 

recalling  mandate 281,  282 

not  entertained — when 283 

BOARD  OF  GENERAL  APPRAISERS, 

final  decision  reviewable  by  Court  of  Customs  Appeals 175,  178,  179 

process  issued  is  called  mandate 177 

assignment  of  errors  on  review  of  decision 178 

application  to  Court  of  Customs  Appeals  for  review 178 

filing  fee 178 

bond 178 

mandate  issued  to — when 178 

appeal — writ  of — how  issued 178 

mandate  by  Court  of  Customs  Appeals  after  final  decision 180 

BOND.     See  also  Forms;  Supersedeas  Bond. 

admiralty — appeal  to  Circuit  Court  of  Appeals 94 

additional  bond  may  be  required  on  appeal  from  interlocutory  order — when  100 

continuing  injunction  pending  appeal 100 

Forma  Pauperis — bond  must  be  furnished  to  review  decision  of  highest  state 

court 165 

Court  of  Customs  Appeals — application  for  review 178 

habeas  corpus — when  required 190 

appeal  or  error — the  Statute 219 

criminal  cases — bond  not  required 220 

filing 220 

waiver  by  parties 220 

who  must  sign  bond 220 

stay  operative  only  as  against  those  who  gave  bond 220 

who  may  approve  bond 221  et  seq. 

defective  bond — no  ground  for  dismissal 221 

to  whom  made 221 

where  judgment  is  several 221 

time  for  filing  bond 221 

supersedeas.     See  Supersedeas  Bond. 

admiralty 231 

forms.     See  Forms. 

BRIEFS.     See  Appellate  Procedure. 

insufficient  to  prove  Federal  question  raised  below 146 

Court  of  Customs  Appeals — 

time  to  print,  file,  and  serve  same 179 

extension  of  time  to  file 179 

form  and  size 179 

(393) 


INDEX 

[references  are  to  pages] 

BRIEFS—  Continued 

U.  S.  Circuit  Court  of  Appeals — 
form  and  size  of  printed  briefs — 

First  Circuit 264 

Second  Circuit 264 

Third  Circuit 264 

Fourth  Circuit 264 

Fifth  Circuit 265 

Sixth  Circuit 265 

Seventh  Circuit 265 

Eighth  Circuit 266 

Ninth  Circuit 266 

Supreme  Court  of  U.  S. — 

Form  and  size  of  printed  briefs 264 

time  for  filing  same 267 

number  of  copies • 267 

one  to  be  signed  in  ink  by  counsel 267 

exchange  of  briefs  required — when 267 

contents 268 

subject  index  and  alphabetical  list  of  cases  necessary — when 268 

specifying  page  of  record  in  brief 268 

citation  of  doubtful  authorities 268 

specification  of  errors  in  brief  essential 269 

briefs  stricken  for  scandal  and  impertinence 269 

time  for  submitting  same 270 

appeals  from  Court  of  Claims 270 

number  of  copies  to  be  filed 270 

oral  arguments  by  one  party — effect  of 270 

must  be  served 270 

failure  to  file  brief— effect  of 269,  277 

of  plaintiff  in  error  or  appellant 277 

of  defendant  in  error  or  appellee 277 

of  either  party 277 

at  second  term 277 


CAPITAL  CASES, 

test  of  jurisdiction  of  Supreme  Court — what  constitutes 63 

Alaska — appeal  and  error  to  Circuit  Court  of  Appeals,  Ninth  Circuit 187 

time  to  sue  out  writ  of  error 209 

writ  of  error  operates  as  supersedeas 226 

stay  of  death  penalty — the  Statute 226,  227 

(394) 


INDEX 
[references  are  to  pages] 

CAUSES  OF  ACTION, 

misjoinder  must  be  raised  below 45 

CERTIFICATION.     See  also  Certified  Questions. 

jurisdictional  question — necessity  of  certifying 64 

mode  of  certification 65 

sufficient  certification — what  constitutes 65 

certificate  not  required — when 66 

decree  equivalent  to  certificate — when 66 

time 66 

habeas  corpus  cases 190 

forms.     See  Forms. 

CERTIFIED  QUESTIONS, 

to  Supreme  Court  on  question  of  jurisdiction  from  U.  S.  District  Court, 

64,  65,  66 

to  Supreme  Court  from  Circuit  Court  of  Appeals 114,  115 

procedure 114,  115,  116 

requisites — Rule  of  Supreme  Court 115 

specific  questions  only  to  be  certified 115 

specific  propositions  of  law  only  considered  and  answered 116 

categorical  answers  made  by  Supreme  Court 116 

bankruptcy — questions  of  law  only 116 

no  certificate  after  decision  in  Circuit  Court  of  Appeals 117 

form  of  certificate 117 

CERTIORARI, 

only  remedy  in  every  case  made  final  by  Circuit  Court  of  Appeals  Act. . .  80,  122 

criminal  cases 128 

United  States  can  appeal — when 38,  128 

bankruptcy 83,  1 17 

admiralty 94,  128  (d) 

trademark  cases 128  (b) 

copyrights — Sect.  1,  Act  Jan.  15,  1915 80 

contempt  judgment 11,  128  (c) 

habeas  corpus  in  deportation  case 128  (e) 

cannot  be  allowed  by  Circuit  Court  of  Appeals 123 

application  for  writ — instructions  of  Clerk  of  U.  S.  Supreme  Court 123 

petition  and  brief 123,  124 

petition — contents  of — notice 124 

petition  for.     See  Forms. 

time  limit  for  application  for  writ 124 

petition  may  be  filed — when 125 

in  vacation 125 

(395) 


INDEX 
[references  are  to  pages] 

CERTIORARI— Continued 

review  limited  to  errors  specified  in  petition 125 

errors  not  considered  by  Supreme  Court 125 

may  issue  at  what  stage  of  case 125,  126 

may  be  directed  to  trial  court 125 

refusal  of  writ  not  a  bar  to  second  application 125 

second  application  for  writ  permissible — when 125 

may  be  awarded  before  decision  by  Circuit  Court  of  Appeals 126 

review  by  Supreme  Court — scope  of 126 

review  of  questions  not  raised  in  trial  court — when 126 

refusal  of  Circuit  Court  of  Appeals  to  take  jurisdiction — effect  of 126 

interlocutory  appeal — review  of  decision  of  Circuit  Court  of  Appeals 127 

more  than  one  writ  allowed — when 127 

no  jurisdictional  amount 127 

administrative  orders  not  reviewable  by  certiorari 127 

will  not  lie  where  an  appeal  may  be  taken 127,  128 

writ  of  error  and  certiorari  may  be  resorted  to — when 128 

when  writ  of  certiorari  will  lie 129,  130 

not  issued  as  a  matter  of  right 129  (b) 

patent  cases — writ  granted — when 130  (j) 

criminal  cases — writ  granted — when 130  (m) 

effect  of  allowance  of  writ 130 

mandate  on 130 

refusal  of  writ — effect  of 130 

Highest  State  Court  decisions  reviewable  by  Supreme  Court.     See  Highest 
State  Court. 

writ  of  error  or  certiorari — when  either  may  be  invoked 133 

Federal  claim  reviewable  only  by  certiorari — when 134 

distinction  between  writ  of  error  and  certiorari 134 

Act  of  Sept.  6,  1916 133,  134,  135 

no  jurisdictional  amount  required 135 

Federal  law  controls  procedure 135 

procedure  on  certiorari 136 

time  for  suing  out  certiorari 136 

"highest  state  court" — definition 138 

inferior  court  regarded  as  highest  state  court — when 138 

raising  a  Federal  question — jurisdictional  pre-requisite 141 

Federal  right  must  be  positively  asserted 141 

issue  of  law  must  be  definite 142 

Federal  claim  cannot  be  spelled  out  by  resort  to  judicial  knowledge. .  .  142 

Supreme  Court  of  Porto  Rico — review  by  Supreme  Court  of  U.  S. — when. .  185 

time  to  present  petition  for  certiorari 185 

Supreme  Court  of  Hawaii — review  by  Supreme  Court  of  U.  S. — when 185 

time  to  present  petition  for  certiorari 185 

(396) 


INDEX 
[references  are  to  pages] 

CERTIORARI—  Continued 

Supreme  Court  of  Philippine  Islands — review  by  U.  S.  Supreme  Court 
limited  to  certiorari 186 

writ  issued  in  aid  of  appellate  jurisdiction 190 

to  Supreme  Court  of  U.  S. — time 208 

to  Supreme  Court  of  Philippine  Islands — time 208 

from  U.  S.  Supreme  Court — 

filing  record  used  in  court  below 261 

for  diminution  of  record 263,  264 

motion  for — requisites 263 

time  for  making  motion 263 

motion  denied  for  negligence  in  preparation  of  record 264 

printed  returns  to  writs  of  certiorari — 

form  and  size — Circuit  Court  of  Appeals — Eighth  Circuit 265 

From  U.  S.  Supreme  Court  to  U.  S.  Circuit  Court  of  Appeals — 

jurisdiction  of  Supreme  Court,  §  240  Federal  Judicial  Code 122 

new  legislation — Act  of  Sept.  6,  1916 122 

judgments  of  Circuit  Court  of  Appeals — when  final 122 

stay  of  execution  by  Circuit  Court  of  Appeals  to  apply  for  writ  of 

certiorari 122,  123 

writ  of  certiorari  cannot  be  allowed  by  Circuit  Court  of  Appeals 123 

writ  of  certiorari — instructions  relative  to  applications  for 123 

petition — contents  of,  notice 124 

time  limit  for  application 124 

petition  may  be  filed  during  adjournment  or  in  vacation 125 

review  confined  to  errors  specified  in  petition 125 

review  of  errors  raised  in  trial  court  and  contained  in  record  only 125 

certiorari  may  issue  at  what  stage  of  case 125,  126 

certiorari  may  be  directed  to  trial  court 125 

refusal  of  writ  not  a  bar  to  second  application 125 

second  application  for  writ  permissible — when , . .   125 

certiorari  may  be  awarded  before  decision  by  Circuit  Court  of  Appeals  126 

review — scope  of 126 

review  of  questions  not  raised  in  trial  court — when 126 

refusal  of  Circuit  Court  of  Appeals  to  take  jurisdiction — effect 126 

interlocutory  appeals 127 

more  than  one  writ  of  certiorari  allowed — when 127 

no  jurisdictional  amount  required 127 

administrative  orders  not  reviewable  by 127 

certiorari  will  not  lie  where  an  appeal  may  be  taken 127,  128 

trademark  cases — decrees  of  Circuit  Court  of  Appeals  reviewable  by 

128  (b) 

contempt  judgment  and  sentence  reviewable  by 128  (c) 

admiralty  decree  of  Circuit  Court  of  Appeals  reviewable  by 128  (d) 

(397) 


INDEX 
[references  are  to  pages] 

CERTIORARI—  Continued 

From  U.  S.  Supreme  Court  to  U.  S.  Circuit  Court  of  Appeals — Continued 

habeas  corpus  judgment  of  Circuit  Court  of  Appeals  reviewable  by.  128  (e) 
deportation  cast) — judgment  of  Circuit  Court  of  Appeals  reviewable  by 

128  (e) 
criminal  case — judgment  of  Circuit  Court  of  Appeals  reviewable  by. . .  128  (f ) 

both  certiorari  and  writ  of  error  may  be  resorted  to — when 128 

certiorari — writ  will  lie  when 129,  130 

certiorari  not  issued  as  a  matter  of  right 129   (b) 

patent  cases — writ  granted — when 130    (j) 

criminal  cases — writ  granted — when 130  (m) 

certiorari — effect  of  allowance  of  writ 130 

mandate  on  certiorari 130 

refusal  of  writ — effect  of 130 

forms.     See  Forms. 

CHARACTER, 

legal  presumption  as  to 53  (a) 

CHARGE  TO  JURY, 

erroneous  charge  is  ground  for  reversal — when 49 

court  need  not  follow  language  of  requested  charge 49 

court  need  not  repeat  instructions  already  given  in  different  language 49 

singling  out  facts  prohibited 50 

function  of  trial  judge 50 

criminal  cases — verdict  of  guilty  cannot  be  directed 51 

reasonable  interpretation  of  charge 52 

charge  must  be  considered  as  a  whole 52 

charge  must  be  preserved  in  Bill  of  Exceptions 52 

errors — method  of  assigning  same  in  Assignment  of  Errors 212,  213 

exceptions  to — how  shown  in  Bill  of  Exceptions 241 

exceptions  to — must  be  taken  before  jury  retire 242 

general  exception  to  whole  charge  insufficient — when 242 

CHIEF  JUSTICE  OF  STATE, 

certificate  of  state  Chief  Justice  insufficient  to  confer  jurisdiction 145 

Federal  question — certification  by  state  Chief  Justice 145 

writ  of  error — allowance  by  state  Chief  Justice 145 

CITATION, 

appeal  and  error — citation  to  adverse  party 222 

issued  by  whom 221,  222 

notice  to  adverse  party 221,  222 

returnable — when 222 

(398) 


INDEX 
[references  are  to  pages] 

CITATION—  Continued 

appellate  court  may  issue  citation — when 222 

lack  of  citation  not  jurisdictional — when 223 

parties  to 223 

unnecessary — when 223 

necessary  if  bond  filed  after  term 223 

necessary  if  appeal  taken  after  term. 223 

imperative  on  writ  of  error 224 

waived  by  filing  general  appearance 224 

waiver  of  objection  to  insufficiency 224 

service  on  attorney  sufficient 224 

service  by  mailing — invalid 224 

time  for  return 255 

time  for  serving 256 

death  of  a  party  before  appeal  or  error  sued  out — 

citation  to  be  served  on  representative 262,  263 

time 263 

form.     See  Forms. 

CIVIL  CONTEMPT.     See  Contempt. 

CLASS  LEGISLATION, 

prohibited 155 

COMMENTS.     See  Remarks. 

COMMISSION  (INTERSTATE  COMMERCE), 

interlocutory  injunctions — orders  by 76 

cannot  restrain  public  officer — when 75 

orders — how  reviewed  by  Supreme  Court 77 

COMMON  LAW.     See  Judgment. 

trial  without  jury — limitation  of  review 55 

action — findings  of  referee  reviewable 55 

or  under  local  practice  of  state — distinction  between 56 

record — contents 232 

trial  before  the  Court  in  common  law  cases.     See  Trial  before  the  Court 

in  Common  Law  Cases, 
bill  of  exceptions.     See  Bill  of  Exceptions, 
forms.     See  Forms. 

CONCLUSIONS  OF  LAW, 

not  conclusive  upon  reviewing  court — when 43 

Court  of  Claims — appeal  to  Supreme  Court 170 

(399) 


INDEX 
[references  are  to  pages] 

CONDEMNATION  CASES, 

judgment  of  U.  S.  Circuit  Court  of  Appeals  not  final — when 24  (c) 

CONGRESS, 

acts  of.     See  Act  of  Congress. 

power  of — over  inferior  courts 4 

fixes  limit  of  jurisdiction 4 

power  of  Congress  to  create  and  abolish  inferior  courts 5 

CONGRESSIONAL  COMMITTEE, 

contempt  before — habeas  corpus 193 

CONSOLIDATION  OF  ACTIONS, 

for  hearing  in  U.  S.  Supreme  Court 276 

CONSTITUTION  OF  UNITED  STATES.     See  Federal  Constitution. 

CONSTITUTIONAL   QUESTIONS.     See     Federal     Constitution;     Federal 
Questions. 

CONTEMPT, 

proceedings  reviewable  by  writ  of  error — when 17 

interlocutory  contempt  orders  not  reviewable 18 

order  not  reviewable — when 18 

punitive  order  in  contempt  a  criminal  judgment 18 

reviewable  by  writ  of  error 18 

reviewable — how  and  when 18,  19 

specific  criminal  offense 18 

party  in  contempt  not  deprived  of  right  of  appeal 33 

judgment  of  Circuit  Court  of  Appeals — reviewable  in  Supreme  Court  only 

by  certiorari Ill 

judgment  and  sentence  reviewable  by  certiorari 128  (c) 

before  Congressional  Committee — Habeas  corpus  will  not  lie 193 

Federal  courts — power  of,  §  268  Fed.  Jud.  Code 197 

statute — construction  of 198 

proceedings  before  U.  S.  Commissioner 198 

no  change  of  venue 198 

no  jury  trial 198 

"presence  of  the  court" — defined 198,  199 

falsification  of  evidence 199 

misconduct  in  court 199 

obstruction  of  due  administration  of  justice 199 

attack  on  plaintiff's  attorney 200 

(400) 


INDEX 
[references  are  to  pages] 

CONTEMPT—  Continued 

attempt  to  influence  juryman  on  street 200 

attorney  an  officer  of  court 200 

assault  on  officer  on  duty 200 

language  or  conduct  intended  to  incite 200 

failure  to  produce  papers — advice  of  counsel  no  defense 200 

Bankruptcy  Court — 

interference  with  property  in  custody  of 200,  201 

inability  of  bankrupt  to  comply  with  order 201 

classes  of  contempt — 

distinction  between  civil  and  criminal 201 

civil  contempt — 

proceedings 201 

review — when  allowed 201,  202 

diligence  in  prosecuting  required 202 

punishment 202 

criminal  contempt — 

procedure 201,  202 

information  against  defendant 202,  203 

contempt  out  of  court — affidavits  necessary 203 

privileges  of  defendant 203 

weight  of  evidence  not  reviewed 203 

perjury  in  civil  proceeding — when  not  contempt 204 

relation  of  criminal  contempt  to  original  proceeding 204 

decree  should  indicate  hearsay  evidence  rejected 204 

pleading — nature  of 204 

disobedience  of  order  of  Supreme  Court 205 

cannot  be  purged  by  mere  answer 205 

conviction  no  bar  to  criminal  prosecution 205 

judgment — mode  of  review 206 

by  a  stranger  to  record — mode  of  review 206 

bankruptcy — civil  contempt  reviewable  by  petition  to  revise 206 

mandamus  from  Supreme  Court  to  Circuit  Court  of  Appeals  to  entertain 

jurisdiction 206 

innocent  conduct  as  contempt — 

review  of  State  court 206 

imprisonment — time 206 

forms.     See  Forms. 

CONTRACTS, 

impairing  obligations  of 159,  160 

U.  S.  Supreme  Court  not  bound  by  findings  of  State  court 160 

ordinances 161 

charters  held  inviolable 161,  162 

(401) 


INDEX 
[references  are  to  pages] 

COPYRIGHT, 

decree — when  final 22  (d) 

appeal  to  U.  S.  Circuit  Court  of  Appeals.     See  U.  S.  Circuit  Court  of 

Appeals 80 

appeal  and  error  from  Supreme  Court  of  District  of  Columbia 113 

jurisdictional  amount  not  required  on  appeal — when 113 

from  U.  S.  Court  of  Appeals  to  Supreme  Court  by  certiorari 80 

CORPORATIONS.     See  Foreign  Corporation. 

statutory  receiver  may  sue  out  writ  of  error 34 

foreign  corporation — jurisdiction  of  U.  S.  Circuit  Court  of  Appeals 81 

decisions  of  Circuit  Court  of  Appeals — reviewable  by  Supreme  Court,  when  111 

charters  held  inviolable 160,  161 

COSTS, 

judgment  making  extra  allowance — final 22  (c) 

questions  of  costs  not  reviewable — when 29 

record  in  equity — 

taxing  costs  against  attorneys — when 249 

costs  for  infraction  of  rules  of  court 250 

printing  the  record  on  appeal  or  error 258,  259 

clerk  to  demand  estimated  cost 258 

time  for  paying  estimated  cost 258 

clerk  cannot  charge  when  printed  copies  are  supplied 260 

preparing  record  or  transcript 260 

manuscript  copy  of  record 260 

printing  record  to  be  taxed  against  losing  party 261 

exception — judgment  against  United  States 261 

failure  of  either  party  to  appear 277 

on  dismissal 279 

on  affirmance 279 

on  reversal 279 

United  States  a  party 279 

inserted  in  mandate 279 

applied  to  §§  238-241  Fed.  Jud.  Code 279 

delay  on  affirmance  in  error 279 

appeal  bond  for  costs — habeas  corpus  case — form 3 13 

bill  of  costs — form 344 

COUNSEL.     See  Attorneys. 

COURT.  See  Supreme  Court  of  the  United  States;  U.  S.  Circuit  Court  of 
Appeals;  U.  S.  District  Court;  Highest  State  Court;  Court  of  Claims;  Court  of 
Customs  Appeals;  and  Territorial  Courts. 

inferior  courts — power  of  Congress  over 4 

(402) 


INDEX 

[references  are  to  pages] 

COURT—  Continued 

organic  power  of 9 

of  law — denned 14 

of  equity — denned 14 

constitutional  provisions 14 

distinction  between  courts  of  law  and  equity 14 

of  equity — transfer  of  causes  to  courts  of  law 15 

remarks  of  court  in  jury  trial  reviewable — when 42 

refusal  of  court  to  exercise  discretion 44 

need  not  follow  language  of  requested  charge 49 

need  not  repeat  instructions  given  in  different  language 49 

trial  before  court — limitation  of  review 54 

decision  of  court  in  common  law  trial  without  jury — limitation  of  review. . .  55 

jurisdiction  of  court  as  a  Federal  court  in  issue 59,  60 

power  of  court  to  amend  its  own  judgments 282 

COURT  OF  CLAIMS, 

Tucker  Act 99 

appeals  from — jurisdiction  of  U.  S.  Supreme  Court — 

statutory  appeal —  §  181  Fed.  Jud.  Code 167 

jurisdictional  amount 167 

time  to  appeal 168 

fraudulent  claim  forfeited 168 

right  to  appeal 168 

who  may  not  claim  or  prosecute 168 

written  application  for  appeal  necessary 169 

order  allowing  appeal 169 

record  on  appeal — 

contents 169,  170 

time  to  file  same 170 

docketing  case  on  appeal — time 170 

submission  of  appeals  on  printed  briefs 170 

time  limit  ends  at  application  to  allow  appeal 170 

findings  of  fact  and  conclusions  of  law  to  be  made 170 

parties  to  submit  findings 171 

applied  to  District  of  Columbia  Claims  Act 171 

printed  arguments  and  briefs  on  appeal  to  U.  S.  Supreme  Court.     See 
Arguments;  Briefs. 

COURT  OF  CUSTOMS  APPEALS, 

statute  creating  same — §  188  Fed.  Jud.  Code 172 

court  never  closes 173 

executive  officer  of  court 173 

clerk  of  court — powers  and  duties 173 

(403) 


INDEX 
[references  are  to  pages] 

COURT  OP  CUSTOMS  APPEALS—  Continued 

assistant  clerks,  etc 174 

stenographers 174 

court  reporters 174 

messengers 174 

place  for  holding  court 174 

powers  of  the  court 174,  175 

jurisdiction  of  the  court 175 

review  of  final  decisions  of  Board  of  General  Appraisers 175 

appellate  jurisdiction  exclusive 175 

judgments  and  decrees  final 175 

transfer  of  review  from  other  courts 175 

time  to  take  appeal 175 

cases  pending  transferred 176 

time  for  appeal 176 

record  on  appeal 176 

no  delay  in  hearing 176 

call  of  calendar 176 

rules  of  the  court — 

the  clerk 177 

filing  and  withdrawal  of  papers,  etc 177 

attorneys 177 

certificate  of  admission — fee 180 

process 177 

review  of  decision  of  Board  of  General  Appraisers 178 

application  for  review 178 

filing  fee 178 

bond 178 

assignment  of  errors 178 

mandate 178 

calendar 178 

records — 

printing,  filing,  and  serving 179 

form  and  size 179 

deposit  of  amount  of  cost  of  printing 179 

briefs — 

time  to  print,  file,  and  serve  same 179 

extension  of  time  to  file 179 

form  and  size 179 

sessions 179 

motions  may  be  presented — when 179 

appeals — when  taken 179 

amendments — when  permitted 179 

judgments  of  Board  of  General  Appraisers 179 

(404) 


INDEX 

[references  are  to  pages] 

COURT  OF  CUSTOMS  APPEALS— Continued 
rules  of  the  court — Continued 

final  decision — mandate  issued — when 180 

fees  of  clerk  and  marshal 180 

arguments — time 180 

appearances 180 

application  for  rehearing 181 

CREDITOR'S  SUIT, 

order  allowing  attorney's  fees  final 21  (b) 

CRIMINAL  APPEALS  ACT, 

United  States  can  appeal  or  bring  certiorari  only  under  Act 38 

appeals  by  Government — jurisdiction  of  Supreme  Court 77 

limitation  of  review 77 

indictment  bad  in  law  not  reviewable 78 

indictment  dismissed — misconstruction  of  statute — reviewable 78 

indictment — construction  of,  by  court  below 78 

jurisdiction  of  Supreme  Court — limitations 78 

CRIMINAL  CASES.  See  also  Criminal  Appeals  Act. 

judgments  reviewed  by  writ  of  error 19 

United  States  can  appeal  or  bring  certiorari — when 38 

reviewing  court  may  notice  plain  error  in  charge  without  objection 44 

directed  verdict — review  of 48 

verdict  of  guilty  cannot  be  directed 51 

verdict — any  count  sufficient  to  sustain 53 

appeal  by  Government.     See  Criminal  Appeals  Act. 

Circuit  Court  of  Appeals  judgment  reviewable  by  certiorari  only 128  (f) 

certiorari — writ  granted  when 130  (m) 

Alaska — appeal  and  error  to  Circuit  Court  of  Appeals,  Ninth  Circuit...  186,  187 
habeas  corpus — 

constitutionality  of  Act  cannot  be  tested  by 191 

errors  of  law  not  reviewable  by 192 

appeal  and  error — 

bond  not  required 220 

bond  required — when 220 

supersedeas 226 

bail 226 

precedence — advancing  causes  on  motion 274 

rehearing  by  Government 278 

forms.     See  Forms. 

CRIMINAL  CONTEMPT.    See  Contempt. 

(405) 


INDEX 
[references  are  to  pages] 

CROSS-APPEALS, 

direct  to  Supreme  Court 68 

in  Federal  Courts 219 

CROSS-ASSIGNMENTS  OP  ERRORS, 

not  permitted  in  Federal  Courts 219 

CROSS-BILL, 

decree  dismissing  not  final — when 25  (b) 

CUSTOMS  APPEALS.     See  Court  of  Customs  Appeals. 

CUSTOMS  REVENUES, 

jurisdiction  Court  of  Customs  Appeals 175 

D 

DAMAGES, 

excessive  damages 53 

for  delay  in  suing  out  frivolous  writ  of  error 151 

admiralty 279 

for  delay  on  affirmance  in  error 279,  280 

DEATH  OF  A  PARTY, 

pending  appeal  or  error — procedure 262 

mandamus — effect  of 262 

death  of  officer  abates  suit 262 

substitution  will  not  be  permitted — when 262 

time  for  representatives  to  become  parties 262 

before  appeal  or  error  sued  out — no  representative  within  the  jurisdiction 

of  court — procedure 262,  263 

time  for  representative  to  become  party 263 

DECISIONS.  See  Decree;  Judgment;  Federal  Decisions — How  and  When 
Reviewable;  Highest  State  Court;  District  of  Columbia;  Hawaii;  Porto 
Rico;  Philippine  Islands;  Alaska. 

DECREE.     See  Judgment;  Federal  Decisions — How  and  When  Reviewable; 

Highest  State  Court;  District  of  Columbia;  Hawaii;  Porto  Rico;  Philippine 

Islands;  Alaska. 

invalid — when 10 

equity — how  reviewed 16  (b) 

must  be  final — jurisdictional  prerequisite 20 

finality  of  decree — doubt  resolved  against 20 

(406) 


INDEX 

[references  are  to  pages] 

DECREE — Continued 

final  decree — defined 20 

orders  at  foot  of  decree  may  be  final 20 

final — when  reference  to  Master  does  not  affect 21 

pro  confesso  final — review  limited 21 

final — when 21 

creditor's  suit — order  allowing  attorney's  fees  final 21  (b) 

copyright — when  final 22  (d) 

District  Court — Interstate  Commerce  Commission — when  final 22  (e) 

foreclosure  proceedings — when  order  is  final 22  (f) 

mandamus — order  granting  or  refusing  writ — final 22  (g) 

of  sale — appealable 23 

setting  aside  sale — not  final — who  may  appeal 23 

not  final — when  motion  to  set  aside  pending 23 

not  final — when  in  alternative 24 

interlocutory — when 24  (a) 

not  final — when 24 

when  review  must  await  further  proceedings — not  final 25 

stipulated  decree  not  appealable 30 

refusing  naturalization — not  reviewable 30 

Federal  Court — who  may  apply  for  review 32 

in  equity — reversal  on  court's  own  motion 44 

equivalent  to  certificate  of  jurisdictional  question — when 66 

time  to  appeal  when  decree  certifies  jurisdictional  question 66 

prize  causes — how  reviewable 66,  67 

Circuit  Court  of  Appeals — Bankruptcy — final  decree  reviewable    only    by 

certiorari 83 

bankruptcy — reviewable  by  petition  to  revise — when 86,  87 

bankruptcy  intervention — reviewable  by  appeal 89,  90 

Circuit  Court  of    Appeals — appeal    or    error   lies   to   Supreme   Court — 

when 109,  110 

practice — rules  for 109 

must  be  final 109 

appealable  to  Supreme  Court — when 109,  110,  111 

admiralty — Circuit  Court  of  Appeals  decree  not  reviewable  in  Supreme 

Court Ill 

equity — no  jurisdictional  amount  required  on  appeal  to  Supreme  Court — 

when 113 

patent  cases — appeal  from.  See  Patent  Cases;  Appeal  and  Error, 
copyright  cases — appeal  from.  See  Copyright;  Appeal  and  Error, 
deprivation  of  rights  of  citizens  under  Federal  Constitution — appeal  to 

Supreme  Court 113 

Circuit  Court  of  Appeals  decrees — when  final 122 

Act  of  Sept.  6,  1916 122 

(407) 


INDEX 
[references  are  to  paces] 

DECREE— Continued 

Highest  State  Court.     See  Highest  State  Court. 
Court  of  Claims.     See  Court  of  Claims. 

Board  of  General  Appraisers — review  of 175,  178 

Court  of  Customs  Appeals.     See  Court  of  Customs  Appeals. 
Court  of  Appeals  of  District  of  Columbia.     See  District  of  Columbia. 
Supreme  Court  of  Philippine  Islands.     See  Philippine  Islands. 
District  Court  of  Alaska.     See  Alaska. 

District  Court  of  U.  S. — contempt — review  allowed  when 201,  202 

contempt — decree  should  indicate  hearsay  evidence  rejected 204 

civil  anti-trust  causes — time  to  appeal 209 

confirming  Master's  Report — assignment  of  errors  on  appeal  from  decree. .  218 

entered  in  pursuance  to  mandate — second  appeal  not  entertained 229,  230 

power  of  court  to  set  aside  its  own  decree — when 282 

DEFENDANT, 

privilege  of  testifying  in  own  behalf 53 

privileges  in  criminal  contempt 203 

ruling  on — exception  to  ruling  unnecessary — when 246 

DEMURRER, 

practice  on 46 

DEPORTATION  CASES, 

record  reviewable 43 

evidence  reviewable 43 

habeas  corpus  judgment  of  Circuit  Court  of  Appeals  reviewable  by  cer- 
tiorari  128  (e) 

habeas  corpus 193 

inquiry  limited 193,  194 

right  of  deportation — how  to  be  exercised 194 

release  conditional 194 

challenge  of  jurisdiction  permitted — when 195 

summary  of  the  doctrine 195 

forms.     See  Forms. 

DIAGRAMS, 

evidence  in  lower  court — procedure  on  appeal  or  error 252 

DIRECT  APPEAL.     See  Supreme  Court  of  the  United  States. 

DISCRETION, 

refusal  to  exercise 44 

(408) 


INDEX 

[references  are  to  pages] 

DISMISSAL, 

bankruptcy — lack  of  jurisdiction/, 63 

of  cause  on  appeal  to  U.  S.  Supreme  Court 255 

failure  to  file  brief — U.  S.  Supreme  Court 269 

failure  to  file  assignment  of  errors — U.  S.  Supreme  Court 269 

appeal  or  error — 

for  failure  to  print  material  part  of  record 258 

for  failure  to  pay  estimated  cost  of  printing  record 258 

Second  Circuit 259 

before  record  is  printed — when 272 

where  question  is  foreclosed  by  prior  decisions 273 

presumption  against  granting  motion 273 

lack  of  jurisdiction  apparent 273 

by  consent 274 

by  appellant 274 

failure  of  either  party  to  appear 277 

want  of  jurisdiction — costs 279 

of  cause — costs 279 

DISTRICT  ATTORNEY, 

improper  comments  of — objections  thereto 53 

DISTRICT  OF  COLUMBIA, 

Supreme  Court  judgment  or  decree  reviewable 113 

no  jurisdictional  amount  required — when 113 

patent  cases — appeal  from  judgment  or  decree  of  Supreme  Court 113 

copyright  cases — appeal  from  judgment  or  decree  of  Supreme  Court 113 

bankruptcy — appellate    jurisdiction    U.  S.    Supreme  Court — appeal  from 

Supreme  Court 117 

review  limited  to  petition  for  certiorari 117 

Claims  Act — appeal  from  Court  of  Claims  applied  to 171 

Court  of  Customs  Appeals.     See  Court  of  Customs  Appeals. 

Court  of  Appeals — appeal  or  error  lies  to  Supreme  Court — when 182,  183 

final  judgments  and  decrees  reviewable — when 182,  183 

time  to  take  appeal  or  error 183 

construction  of  §  250  Fed.  Jud.  Code 182  (note  1) 

DOCKETING, 

admiralty  causes 98 

cause  in  appellate  courts 255 

fees 256 

deposit  on  docketing  in  lieu  of  bond 256 

who  may  docket  cause 255,  256 

proceedings  after  docketing  cause 264 

(409) 


INDEX 
[references  are  to  pages] 

DRUG  ACT.     See  Food  and  Drug  Act. 

DUE  PROCESS  OF  LAW, 

Fourteenth  Amendment  to  Constitution — claims  under 153,  154,  155 

application  and  effect 154 

habeas  corpus  from  state  court 154 

class  legislation  prohibited 155 

embraces  all  agencies  of  state 155 

aliens  included 155 

guaranties 156 

includes  state  judiciary 156 

substance,  not  form,  governs 156,  159 

where  party  had  opportunity  to  be  heard 156 

no  "due  process  of  law" — when 156 

State  cannot  prevent  object  of 156 

applied  to  judicial  proceedings 156,  157 

notice  necessary  before  judgment 157 

question  of  due  service  of  process 157 

"due  process"  denied — decided  by  Supreme  Court 158 

foreign  corporation 158 

synonymous  with  "The  law  of  the  land" 158,  159 

definition 158,  159 

as  used  in  Magna  Charta 159 

DUPLICATIONS, 

in  record  not  permitted 232 

E 

EMIGRATION  PROCEEDINGS, 

habeas  corpus — facts  reviewable 191  (c) 

ENJOINING.     See  also  Injunction. 

proceedings  in  State  Courts — by  Federal  Court 103,  104 

taxes  and  license  fees — when 103  (d) 

enforcement  of  judgment  of  State  Court — when 104 

EQUAL  PROTECTION  OF  THE  LAW, 

Fourteenth  Amendment — claims  under 153,  154  et  seq. 

application  and  effect 154 

habeas  corpus  from  State  Court 154 

class  legislation  prohibited 155 

embraces  all  agencies  of  State 155 

aliens  included 155 

guaranties 155 

(410) 


INDEX 
[references  are  to  pages] 

EQUITY.     See  Decree. 

decree — how  reviewed 16  (b) 

appeal — law  and  fact  reviewed 25 

who  must  join  in  appeal  or  error 33 

decree — reversal  on  court's  own  motion 44 

appeals — objections  to  evidence 47 

continuing  injunction  pending  appeal 100 

Rule  LXXIV.  continuing  injunction  pending  appeal 100 

appeal  from  decree  in  equity — no  jurisdictional  amount  required 113 

patent  cases — appeal  from  decree  of  Circuit  Court  of  Appeals 113 

copyright  cases — appeal  from  decree  of  Circuit  Court  of  Appeals 113 

administrative  orders — review  of 127 

record.     See  Record  in  Equity. 

interest 278 

forms.     See  Forms. 

ERROR.     See  Reversible  Error. 

reversal  on — limited 42 

in  record  presumptively  injurious  to  appellant 44 

criminal  cases — reviewing  court  may  notice  plain  error  without  objection . .     44 

not  jurisdictional — considered  when 45 

in  excluding  material  evidence 47 

error  in  instructing  jury — exception  necessary 49 

error  of  U.  S.  District  Court  reviewable  in  Circuit  Court  of  Appeals — 

when 81,  82 

statement  of  errors — time  for  filing 258 

specification  of  errors  in  brief  essential 269 

reviewed  by  certiorari 125 

what  may  be  assigned  as 143  et  seq. 

errors  of  law  not  reviewable  by  habeas  corpus 191 

assignment  of  errors.     See  Assignment  of  Errors. 

method  of  assigning  same 212,  213 

not  considered  on  review — when 215, 216, 217,  218 

plain  errors  unassigned 219 

cross-assignment  of  errors  not  permitted — cross-appeals 219 

reviewable  without  Bill  of  Exceptions — when 238 


EVIDENCE, 

weightof  evidence  not  reviewable — when 42 

scope  of  inquiry  in  trial  before  court 42 

deportation  cases — evidence  reviewable 43 

habeas  corpus  cases — evidence  reviewable 43 

insufficiency  of  evidence — when  and  when  not  waived 46 

(411) 


INDEX 
[references  are  to  pages] 

EVTDE  NCE— Continued 

objections  to  evidence — . 

how  made 47 

equity  appeals 47 

admiralty  appeals 47 

rule  of  practice 47 

error  in  excluding  material  evidence 47 

judge  may  express  an  opinion  on  same 49 

bankruptcy — reviewable  on  petition  to  revise 88 

bankruptcy — evidence  on  general  inquiry  competent  only  on  question  of 

jurisdiction 93 

admiralty — record  on  appeal — objections  to  evidence 97 

habeas  corpus — removal  proceedings 193 

contempt  of  Court — 

falsification  of  evidence 199 

weight  of  evidence  not  reviewed 203 

method  of  assigning  errors  in  assignment  of  errors '. 212,  213 

Bill  of  Exceptions.     See  Bill  of  Exceptions. 

objecting  to  evidence  because  complaint  does  not  state  cause  of  action.  ...   241 

EXCEPTIONS.     See  Bill  of  Exceptions. 

EXECUTIONS, 

orders  quashing  executions  are  not  final  or  appealable 24  (f ) 

EXHIBITS  OF  MATERIAL, 

evidence  in  lower  court — procedure  on  appeal  or  error 252 

EXTENSION  OF  TIME.     See  Time. 

EXTRADITION  CASES, 

habeas  corpus 196 

identity  of  prisoner  may  be  inquired  into 191  (b) 

F 

FACTS.     See  also  Findings  of  Fact. 

certain  jurisdictional 9 

quasi  jurisdictional 10 

concurrent  findings  of  fact  not  disturbed  by  Supreme  Court — when 26 

singling  out  facts  in  charge  to  jury  prohibited 50 

every  question  of  fact  must  be  submitted  to  jury 51 

FEDERAL  APPELLATE  PROCEDURE.     See  Appellate  Procedure. 

FEDERAL  CLAIM.     See  Federal  Question. 
(412) 


INDEX 
[references  are  to  pages] 

FEDERAL  CONSTITUTION,  LAWS,  AND  TREATIES, 

claims  or  privileges  under — how  reviewable 67,  68,     69 

facts  and  law  must  be  well  pleaded  in  suit  arising  under 69 

state  constitution  or  laws  contrary  to 72 

review  of    judgments    and    decrees — deprivation    of    rights    of   citizens 

under 113 

Highest  State  Court  decisions — review  by  Supreme  Court.     See  Highest 

State  Court, 
claims  or  privileges  under — 

method  of  raising 142 

must  be  positively  asserted 142 

what  must  be  set  out  in  writ  of  error 142 

confounding  Fifth  with  Fourteenth  Amendment 143 

Federal  Courts  procedure — Fifth  Amendment 143 

Seventh  Amendment — State  Courts  not  bound  by 143 

issue  of  law  must  be  definite 143 

Federal  claim  cannot  be  spelled  out  by  resort  to  judicial  knowledge 143 

no  special  form  required  for  raising  question 144 

proper  time  for  raising  question 144 

failure  to  raise  question  in  trial  court — effect  of 144 

claim  under  set  up  for  first  time  in  assignment  of  errors — when  proper 144 

claim  under  first  raised  in  Appellate  Court — when  seasonable 145 

claims  under  not  raised  in  highest  state  court  fatal 145 

certificate  of  state  Chief  Justice  insufficient  to  confer  jurisdiction 145 

questions  must  appear  from  record 145,  146 

questions — when  impliedly  passed  upon  by  state  court 146 

question  raised  in  court  below — how  shown  on  appeal 146 

question  raised  in  petition  for  rehearing 146 

writ  of  error — local  law  considered — when 147 

writ  of  error — review  controlled  by  §  237  Fed.  Jud.  Code 147 

state  court  decision — what  same  must  show 147 

change  of  rule  by  recent  legislation 148 

Federal  question — statement  in  state  court's  opinion  insufficient — when. . .  148 
Federal  question — omission  by  state  court  to  refer  to  same — when  not  fatal 

to  a  review 148 

misconstruction  of  Act  of  Congress — the  Record 149 

questions  under — not   reviewable   when   judgment   sustainable   on   non- 
Federal  ground 150 

example — laches  as  non-Federal  ground 151 

rule  where  Federal  question  is  controlling 151 

frivolous  writ  of  error — damages  for  delay 151 

findings  of  fact  generally  not  reviewable 151,  152 

exceptions 152 

Federal  questions — what  constitutes 153,  154 

(413) 


INDEX 
[references  are  to  pages] 

FEDERAL  CONSTITUTION,  LAWS,  AND  TREATIES— Contained 

Fourteenth  Amendment — claims  under 153,  154 

challenging  constitutionality  of  state  statute 153,  154 

"due  process  of  law" 153,  154,  156,  158,  159 

"equal  protection  of  the  law" 153,  154,  155 

application  and  effect 154 

habeas  corpus  from  state  court 154 

class  legislation  prohibited 155 

embraces  all  agencies  of  state 155 

aliens  included 155 

guaranties 155 

includes  state  judiciary 156 

"due  process  of  law" — substance,  not  form,  governs 156,  159 

where  party  had  opportunity  to  be  heard 156 

no  "  due  process  of  law  " — when 156 

State  cannot  prevent  the  object  of  "due  process  of  law" 156 

"due  process"  applied  to  judicial  proceedings 156,  157 

"due  process" — notice  necessary  before  judgment 157 

question  of  due  service  of  process 157 

"due  process"  denied — decided  by  Supreme  Court 158 

foreign  corporation — service  of  process 158 

"due  process"  synonymous  with  "The  law  of  the  land" 158 

"due  process" — definition 158,  159 

"due  process" — as  used  in  Magna  Charta 159 

"due  process" — substance,  not  form,  governs 155,  158 

"impairing  obligations  of  a  contract " — claim  how  shown 159,  160 

Supreme  Court  of  U.  S.  not  bound  by  findings  of  state  court 160 

ordinances 161 

charters  held  inviolable 161,  162 

claims  under  Federal  Statutes — review  of 162 

"full  faith  and  credit" — constitutional  provisions 162 

Federal  judgment — failure  of  highest  state  court  to  give  effect  to 162,  163 

question  of  res  adjudicata — when 163 

Federal  judgment — force  to  be  given  same 163 

judgments  of  the  same  jurisdiction 163 

navigable  waters  of  United  States — review  of  decisions 163 

Federal  and  State  legislation 164 

River  and  Harbor  Act  of  1890 164 

Federal  land  titles 164 

banking  laws  of  United  States— questions  under 164 

mining  laws  of  United  States — claims  under 165 

res  adjudicata — question  of — not  Federal 165 

bankruptcy  laws  of  United  States— claims  under 166 

forma  pauperis — no  writ  of  error  to  state  court 166 

(414) 


INDEX 

[references  are  to  pages] 

FEDERAL  CONSTITUTION,  LAWS,  AND  TREATIES— Continued 

Court  of  Claims — appeals  from.     See  Court  of  Claims. 
Court  of  Customs  Appeals.     See  Court  of  Customs  Appeals. 
Territorial  Courts — appeal  and  error  from.     See  Appeal  and  Error;  District 
of  Columbia;  Porto  Rico;  Hawaii;  Philippine  Islands;  Alaska. 

FEDERAL  COURTS.     See  U.  S.  District  Court;  Supreme  Court  of  the  United 
States;  U.  S.  Circuit  Court  of  Appeals;  Court  of  Claims ;  Court  of  Customs 
Appeals;  Territorial  Courts. 

distinction  between  appeal  and  error  exists 16 

judgment — who  may  apply  for  review 32 

decree — who  may  apply  for  review 32 

bankruptcy — judgment  after  adjudication — how  reviewable 33 

who  must  join  in  appeal  or  error 33 

jurisdiction  of  court  as  Federal  Court  in  issue 59,     60 

U.  S.  District  Court — jurisdiction  as  Federal  Court — definition 61 

challenging  jurisdiction  as  court  of  equity — insufficient  for  direct  appeal  to 

Supreme  Court 62 

may  enjoin  proceedings  in  state  court — when 103,  104 

injunction  to  stay  proceedings  in  state  court 103,  104 

may  enjoin  enforcement  of  state  court  judgment — when 104 

procedure — Fifth  Amendment 143 

contempt  of  Court 197  et  seq. 

trial  in  Common  Law  cases — review  by  Supreme  Court.     See  Trial  before 

the  Court  in  Common  Law  Cases. 
Bill  of  Exceptions.     See  Bill  of  Exceptions, 
procedure  in  the  appellate  courts.     See  Appellate  Procedure, 
forms.     See  Forms. 

FEDERAL  DECISIONS— HOW  AND  WHEN  REVIEWABLE, 

constitutional  provisions 14 

definition — courts  of  law  and  equity 14 

transfer  of  causes 15 

state  procedure  not  applicable 16 

appeal  and  error,  distinction  between,  exists  in  Federal  Court 16 

general  rules  governing  review 16 

common  law  judgments,  how  reviewed 16 

equity  decrees,  how  reviewed 16 

mistake  in  choice  of  remedy  between  appeal  and  error  no  longer  fatal;  Act 

of  Sept.  6,  1916 15,  16 

appeal  and  error,  when  advisable  to  use  both 17 

contempt  proceedings  reviewable  by  writ  of  error 17 

interlocutory  contempt  orders  not  reviewable 18 

contempt — order  not  reviewable — when 18 

contempt — punitive  order  a  criminal  judgment 18 

(415) 


INDEX 
[references  are  to  pages] 

FEDERAL  CONSTITUTION,  LAWS,  AND  TREATIES— Continued 

contempt — specific  offense 18 

contempt — punitive  order,  how  and  when  reviewable 18,  19 

criminal  cases — judgments  reviewed  by  writ  of  error 19 

mandamus  proceedings — judgment  reviewable  by  writ  of  error 19 

Pure  Food  Law — judgments  reviewable  by  writ  of  error 19 

Interstate  Commerce  matters — decisions  reviewable  by  writ  of  error 19 

order  setting  aside  judgment  after  term — reviewable  by  writ  of  error 19 

judgment  or  decree  must  be  final — jurisdictional  prerequisite 20 

finality  of  judgment  or  decree — doubt  resolved  against 20 

final  judgment  or  decree — definition 20 

orders  at  foot  of  decree  may  be  final 20 

decree  final — when  reference  to  master  does  not  affect 21 

decree  pro  confesso  final,  but  review  limited 21 

judgments  and  decrees  held  final — when 21 

orders  refusing  intervention  final  and  appealable 22 

order  limiting  liability  in  admiralty  appealable — how 22 

habeas  corpus  orders  final  and  appealable 23 

orders  on  sales  and  resale  appealable 23 

order  setting  aside  sale,  appeal  from 23 

judgment  or  decree  not  final  when  motion  to  set  aside  pending 23 

decree  in  alternative  not  final 24 

decrees  and  orders  held  not  final 24 

when  review  must  await  further  proceedings 25 

appeal  in  equity — law  and  fact  reviewed 25 

concurrent  findings  of  fact  will  not  be  disturbed 26 

exception 26 

patent  matters — concurrent  findings  of  fact  will  not  be  disturbed 26 

Master's  report,  review  of 26 

Master's  findings — how  far  conclusive 27 

Interstate  Commerce  Commission  orders — not  reviewable 28 

exceptions 28 

moot  questions  not  reviewable — what  questions  are  moot 29 

questions  of  costs  not  reviewable,  if  no  other  controversy 29 

moot  question — extrinsic  evidence  permissible  to  prove  same 29 

stipulated  judgments  and  decrees  not  appealable 30 

naturalization  cases 30 

attorneys — decisions  affecting  reviewable  by  mandamus  or  writ  of  error. . .  30 

attorneys — Supreme  Court  entertains  supervisory  jurisdiction 30 

attorneys — rights  of 31 

to  what  court  appeal  or  error  lies.  See  U.  S.  Supreme  Court;  U.  S.  Cir- 
cuit Court  of  Appeals;  U.  S.  District  Court;  Court  of  Claims;  Court 
of  Customs  Appeals;  Highest  State  Court;  Territorial  Courts, 

from  final  judgments  of  U.  S.  Circuit  Court  of  Appeals 109,  110 

(416) 


INDEX 
[references  are  to  pages] 

FEDERAL  JUDGMENT, 

failure  of  highest  state  court  to  give  effect  to 162,  163 

question  of  res  adjudicata — when 163 

force  to  be  given  same 163 

FEDERAL  JUDICIAL  CODE, 

provisions 5 

statutory  provisions  for  appeal  direct  to  U.  S.  Supreme  Court  from  District 

Court 59 

§  238 — Clause  I.     Jurisdiction  of  court  in  issue 59 

Clause  II.     Prize  causes — how  reviewable 66 

Clause  III.     Constitutional    questions    reviewable    exclusively  by 

Supreme  Court — when 67 

Clause  IV.     Federal  treaties — construction  of  same — appeal  direct 

to  Supreme  Court 71 

Clause  V.     State  constitution  or  law  contrary  to  U.  S.  Constitution 

— direct  appeal  lies 72 

Circuit  Court  of  Appeals — powers  and  jurisdiction — §  128 80 

bankruptcy—!  130 82 

Tucker  Act—  If  20,  §  24 99 

appeal  and  error  to  Supreme  Court  from  Circuit  Court  of  Appeals  §  241.. .  109 

certified  questions—  §§  239,  251 114 

bankruptcy — jurisdiction  Supreme  Court —  §  252 117 

§  252  repealed  by  Act  of  Sept.  6,  1916 117 

certiorari — jurisdiction  Supreme  Court — §  240 122 

new  legislation — Act  Sept.  6,  1916 122 

highest  state  court   decisions — review    by  Supreme    Court — Act  Sept.  6, 

1916 134,  135,  136 

writ  of  error  from  state  courts — review  controlled  by  §  237 147 

misconstruction  of  Act  of  Congress — the  Record 149 

claims  under  Federal  Statutes — review 162 

Court  of  Claims — appeals  from — §  181 167 

jurisdictional  amount — §  242 167 

time  to  appeal—  §  243 168 

fraudulent  claims  forfeited  to  Government —  §  172 168 

right  to  appeal—  §  182 168 

who  may  not  claim  or  prosecute — §  154 168 

Court  of  Customs  Appeals— §  188 172 

court  never  closes — §  189 173 

executive  officer  of  court — §  190 173 

clerk  of  court — powers  and  duties — §  191 173,  174 

assistant  clerks,  etc. — §  192 174 

place  for  holding  court — §  193 174 

powers  of  the  court — §  194 174,  175 

(417) 


INDEX 
[references  are  to  pages] 

FEDERAL  JUDICIAL  CODE— Continued 
Court  of  Customs  Appeals — Continued 

jurisdiction  of  the  court — §  195 175 

transfer  of  review  from  other  courts — §  196 175 

time  to  take  appeal — §  196 175 

cases  pending  transferred — §  197 176 

time  for  appeal— §  198 176 

record  on  appeal — §  198 176 

no  delay  in  hearing — §  199 176 

call  of  calendar — §  199 176 

appeal  and  error  from    Court   of   Appeals   of   District  of   Columbia  to 

Supreme  Court — §  250 182 

construction  of  §  250 182  (note) 

Circuit  Court  of  Appeals — appellate  jurisdiction — §  128 184 

§§  128, 238, 246— Act  of  March  3, 1911— amended  Jan.  28, 1915 184 

appeal  and  error  from  District  Court  of  Porto  Rico  to  U.  S.  Circuit  Court 

of  Appeals— §  128 184 

appeal  and  error  from  District  Court  of  Hawaii  direct  to  Supreme  Court  of 

U.  S—  §  238 184 

appeal  and  error  from  Supreme  Court  of  Porto  Rico  to  Supreme  Court  of 

U.  S.— §  246 185 

appeal  and  error  from  Supreme  Court  of  Hawaii  to  Supreme  Court  of  U.  S. 

— §  246 185 

certiorari  from  Supreme  Court  of  Porto  Rico  to  U.  S.  Supreme  Court — §  246  185 
certiorari  from  Supreme  Court  of  Hawaii  to  U.  S.  Supreme  Court — §  246 ....  185 
appeal  and  error  from  Supreme  Court  of  Porto  Rico  to  Circuit  Court  of 

Appeals—§  246 185 

appeal  and  error  from  Supreme  Court  of  Hawaii  to  Circuit  Court  of  Appeals 

— §  246 185 

appeal  from  Supreme  Court  of  Philippine  Islands  to  U.  S.  Supreme  Court — 

procedure  limited  to  certiorari — Act  Sept.  6,  1916 186 

appeal  and  error  from  District  Court  of  Alaska  to  Circuit  Court  of  Appeals, 

Ninth  Circuit— §§  134,  135 186 

appeal  and  error  from  District  Court  of  Alaska  direct  to  Supreme  Court  of 

U.  S.— §  247 187 

habeas  corpus — 

mode  of  appeal — §  765  Rev.  Stat 187 

acts  of  state  courts  pending  appeal  to  Federal  Court  void — §  766  Rev. 

Stat 190 

administration  of  State  law — §  753  Rev.  Stat 191 

contempt  of  court — power  of  Federal  Courts — §  268 197 

time  for  appeal,  etc.,  to  Supreme  Court — Act  Sept.  6,  1916 208 

time  for  appeal  or  error  to  Circuit  Court  of  Appeals — Act  Mar.  3,  1891 

208,  209 

(418) 


INDEX 
[references  are  to  pages] 

FEDERAL  JUDICIAL  CODE—  Continued 

appeal  and  error — power  of  judge  of  Circuit  Court  of  Appeals — §  132 211 

appeal  and  error — assignment  of  errors — necessity  for — §997  Rev.  Stat. 

215,  216 

appeal  by  both  parties — one  record  sufficient — §1013  Rev.  Stat 219 

supersedeas  a  matter  of  right — §  1007  Rev.  Stat 225 

trial  before  court  in  common  law  cases — §  700  Rev.  Stat 245 

record  on  appeal  in  equity — §  698  Rev.  Stat 252 

costs  as  applied  to  §§  238-241  Fed.  Jud.  Code 279 

FEDERAL  LAND  TITLES, 

highest  state  court  decisions  reviewable  by  Supreme  Court — when 164 

FEDERAL  QUESTION.  See  Highest  State  Court. 

reviewable  exclusively  by  Supreme  Court — when 67 

jurisdictional  prerequisite 67,  69,  142 

reviewable  by  U.  S.  Circuit  Court  of  Appeals — when 68 

cross-appeal  direct  to  Supreme  Court 68 

specific  constitutional  question  must  appear  from  plaintiff's  statement  of 

claim 69 

facts  and  law  must  be  well  pleaded 69 

may  be  raised  by  defendant's  answer 69 

review  consists  of 69 

arising  during  trial  in  District  Court — direct  appeal  to  Supreme  Court. ...  70 

decided  pending  appeal — effect  on  jurisdiction  of  Supreme  Court 70 

frivolous  Federal  question — cause  for  dismissal  of  appeal  or  error 71,  150 

appeal  or  error  to  Supreme  Court  from  Circuit  Court  of  Appeals  lies — 

when 110,  111 

appeal  or  error  to  Supreme  Court — no  jurisdictional  amount  required — 

when 113 

Highest  State  Court  decisions — how  reviewable  by  Supreme  Court.     See 

Highest  State  Court. 

method  of  raising 142 

must  be  positively  asserted 142 

confounding  Fifth  with  Fourteenth  Amendment 143 

Seventh  Amendment — state  courts  not  bound  by 143 

issue  of  law  must  be  definite 143 

cannot  be  spelled  out  by  resort  to  judicial  knowledge 143 

no  special  form  required  for  raising  same 144 

proper  time  for  raising 144 

failure  to  raise  question  in  trial  court — effect 144 

set  up  for  first  time  in  assignment  of  errors — when  proper 144 

first  raised  in  appellate  court — when  seasonable 145 

not  raised  in  Highest  State  Court — fatal 145 

(419) 


INDEX 

[references  are  to  pages] 

FEDERAL  QUESTION—  Continued 

certificate  of  State  Chief  Justice  insufficient  to  confer  jurisdiction 145 

must  appear  from  record 145,  146 

when  impliedly  passed  upon  by  state  court 146 

raised  in  court  below — how  shown  on  appeal 146 

raised  in  petition  for  rehearing 146 

writ  of  error — local  law  considered — when 147 

writ  of  error — review  controlled  by  §  237  Fed.  Jud.  Code 147 

state  court  decision — what  same  must  show 147,  148 

change  of  rule  by  recent  legislation 148 

statement  in  state  court's  opinion  insufficient — when 148 

omission  by  state  court  to  refer  to  Federal  question — not  fatal  to  a  review 

—when 148,  149 

misconstruction  of  Act  of  Congress — the  Record 149 

not  reviewable — when  judgment  sustainable  on  non-Federal  ground 150,  151 

example — laches  as  non-Federal  ground 151 

rule  where  Federal  question  is  controlling 151 

frivolous  writ  of  error — damages  for  delay 151 

findings  of  fact  generally — not  reviewable 151,  152 

exceptions 152,  153 

what  constitutes  Federal  question 153,  154 

Fourteenth  Amendment — claims  under 153,  154 

challenging  constitutionality  of  state  statute 153,  154 

"due  process  of  law" 153,  154,  155 

"equal  protection  of  the  law " 153,  154,  155 

application  and  effect 154 

habeas  corpus  from  state  court 154 

class  legislation  prohibited 155 

embraces  all  agencies  of  state 155 

aliens  included 155 

guaranties 155 

includes  state  judiciary 156 

"due  process  of  law" — substance,  not  form,  governs 158,  159 

where  party  had  opportunity  to  be  heard 156 

no  "due  process  of  law " — when 156 

State  cannot  prevent  the  object  of  "due  process" 156 

"due  process" — applied  to  judicial  proceedings 156,  157 

"due  process" — notice  necessary  before  judgment 157 

question  of  "due  service  of  process" 157 

"due  process" — denied,  decided  by  Supreme  Court 158 

foreign  corporation — service  of  process 158 

"due  process"  synonymous  with  "the  law  of  the  land" 158,  159 

"due  process" — definition 158,  159 

"due  process" — as  used  in  Magna  Charta 158 

(420) 


INDEX 
[references  are  to  pages] 

FEDERAL  QUESTION—  Continued 

"impairing  obligations  of  a  contract" — how  shown 159 

Supreme  Court  of  United  States  not  bound  by  findings  of  State  court  160 

ordinances 161 

charters  held  inviolable 161 

claims  under  Federal  Statutes — review  of 162 

"full  faith  and  credit" — constitutional  provisions 162 

Federal  judgment — failure  of  highest  state  court  to  give  effect  to 162,  163 

question  of  res  adjudicate, — when 163 

Federal  judgment — force  to  be  given  same 163 

judgments  of  the  same  jurisdiction 163 

navigable  waters  of  United  States — review  of  decisions 163,  164 

Federal  and  State  legislation 164 

River  and  Harbor  Act  of  1890 164 

Federal  land  titles 164 

banking  laws  of  the  United  States — questions  under 164,  165 

patent  laws  of  the  United  States — questions  under 165 

mining  laws  of  the  United  States — claims  under 165 

res  adjudicata — question  of — not  Federal 165 

bankruptcy  laws  of  the  United  States — claims  under 166 

forma  pauperis — no  writ  of  error  to  state  court 166 

FEDERAL  RIGHT.     Must  be  positively  asserted 142 

FEDERAL  STATUTES.     See  also  Federal  Judicial  Code. 

prohibition— writ  of—  §  688 118 

mandamus — writ  of — §  688 118 

claims  under — decisions  of  highest  state  court   reviewable  by  Supreme 

Court 162 

habeas  corpus — 

mode  of  appeal — §  765  Rev.  Stat 189 

Act  of  state  courts,  pending  appeal  to  Federal  Court,  void — §  766  Rev. 

Stat 190 

FEDERAL  TRADE  COMMISSION, 

powers  of 104,  105 

jurisdiction  of  Circuit  Court  of  Appeals 104,  105 

procedure  before  Commission 105,  106 

procedure  before  U.  S.  Circuit  Court  of  Appeals 105,  106 

findings  of  Commission  as  to  facts — when  conclusive 106 

further  proof  permissible — when 106 

jurisdiction  of  Circuit  Court  of  Appeals  conclusive — when 106 

orders  of  Commission  reviewable  by  Circuit  Court  of  Appeals 106 

service  of  process 106 

(421) 


INDEX 
[references  are  to  pages] 

FEDERAL  TREATIES.     See  also  Federal  Constitution,  Laws,  and  Treaties. 

construction  of  same — appeal  direct  to  Supreme  Court 71 

issue  must  be  raised  in  court  below 72 

non-resident  alien  may  raise  question  of  construction  of 72 

FEES, 

clerk  of  Circuit  Court  of  Appeals  must  be  paid  fees  before  record  is  furnished  1 17 

certiorari — deposit  required 123 

Court  of  Customs  Appeals — application  for  review 178 

fees  of  clerk  and  marshal 180 

docketing  cause  in  appellate  courts 256 

deposit 256 

deposit — Circuit  Court  of  Appeals,  Second  Circuit 256 

printing  the  record — clerk's  fee 258 

how  computed 259 

abolished  in  Circuit  Court  of  Appeals — when 259 

clerk's  supervising  fee  when  necessary  copies  are  furnished 260 

clerk's  fee — manuscript  copy  of  record 260 

FIFTH  AMENDMENT  TO  U.  S.  CONSTITUTION, 

confounding  Fourteenth  Amendment  with  Fifth 143 

controls  procedure  in  Federal  Courts 143 

FINAL  ORDERS.     See  Order;  Judgment;  Decree;  Decision. 

FINDINGS  OF  FACT, 

concurrent — will  not  be  disturbed  by  U.  S.  Supreme  Court 26 

exception 26 

patent  cases 26 

generally  not  reviewable  on  error  to  Supreme  Court  from  highest  state 

court 151 

exceptions 152 

Court  of  Claims — appeal  to   Supreme  Court 170 

parties  to  submit  findings 171 

trial  before  the  Court  in  common  law  cases — review  by  Supreme  Court 245 

(See  Trial  before  the  Court  in  Common  Law  Cases.) 

limitation  of  review 54,     55 

special  findings — the  Statute 245 

request  for  findings  necessary 246 

mere  general  finding  not  reviewable 246 

effect  of 246 

not  reviewable  by  writ  of  error 246 

bill  of  exceptions  unnecessary — when 246 

exception  to  finding  unnecessary — when 246 

inferences  in  absence  of  findings  cannot  be  drawn  by  appellate  court...  246 
agreed  statement  of  facts  considered  as  special  findings — when 247 

(422) 


INDEX 

[references  are  to  pages] 

FINDINGS  OF  REFEREE.     When  reviewable 55,  56,     57 

FOOD  AND  DRUG  ACT, 

judgments  reviewable  by  writ  of  error  only 19 

FORECLOSURE  PROCEEDINGS, 

order — when  final 22  (f) 

decree  setting  aside  sale  not  final 23 

who  may  appeal  from 23 

decree  of  highest  state  court — when  final 138 

FOREIGN  CORPORATION, 

service  of  process  on 158 

FORMA  PAUPERIS, 

suits  in 38 

writ  of  error  to  state  court  from  Supreme  Court  not  allowed 166 

FORMER  JEOPARDY, 

habeas  corpus 196 

FORMS, 

answer  to  petition  to  revise 324 

appearance — order  for 335 

appeal  bond 294 

appeal  bond  for  costs — habeas  corpus  case 313 

appeal  in  habeas  corpus  matters — deportation  case 309 

appeal  in  an  equity  suit — petition  for 288 

assignment  of  errors 289 

assignment  of  errors  in  an  equity  suit  involving  res  adjudicata 291 

assignment  of  errors  in  a  common  law  civil  action 292 

assignment  of  errors  in  contempt  case  for  violation  of  an  injunction 300 

assignment  of  errors  in  criminal  case 303 

assignment  of  errors — habeas  corpus  case 310 

assignment  of  errors — deportation  case 310 

assignment  of  errors  by  the  Government  under  the  Tucker  Act 330 

assignment  of  errors  (Constitutional  questions,  etc.) 346 

bail  bond  on  writ  of  error 305 

bankruptcy — original  petition  to  revise 316 

bankruptcy — answer  to  petition  to  revise 324 

bill  of  costs 344 

bill  of  exceptions — common  law 307 

bond  on  writ  of  error  to  highest  state  court 348 

bond  on  appeal  or  writ  of  error 294 

bond  for  costs — appeal  in  habeas  corpus  case 313 

(423) 


INDEX 

[references  are  to  pages] 

FORMS—  Continued 

certificate  authenticating  record 353 

certificate  of  clerk  of  the  state  court  certifying  the  lodgment  of  certain 

documents 353 

certificate  of  the  clerk  to  the  correctness  of  the  record  as  per  praecipe 333 

certificate  of  Court  of  Appeals  certifying  questions  to  the  Supreme  Court  of 

the  United  States 362 

certificate  of  District  Judge  certifying  question  of  jurisdiction 315 

certificate  on  motion  to  docket  and  dismiss  appeal  under  Rule  9  of  Supreme 

Court  of  United  States 338 

certiorari — petition  for 360 

citation 350 

citation  on  appeal  or  writ  of  error  in  Supreme  Court  of  the  United  States  to 

be  signed  by  judge  allowing  the  appeal  or  writ  of  error 296 

citation — habeas  corpus  case 314 

citation  in  Circuit  Court  of  Appeals 314 

common  law — bill  of  exceptions 307 

common  law  civil  action — assignment  of  errors 292 

contempt — petition  for  writ  of  error  and  bail 299 

contempt  case — assignment  of  errors — for  violation  of  an  injunction ,  300 

costs — appeal  bond  for  costs  in  habeas  corpus  case 313 

costs — bill 344 

criminal  case — supersedeas  and  bail — petition  for  writ  of  error 302 

criminal  case — assignment  of  errors 303 

deportation  case — petition  for  appeal 309,  310 

deportation  case — assignment  of  errors 310 

designating  parts  of  the  record  under  Rule  10,  Subd.  9  of  the  Supreme  Court 

of  the  United  States  by  appellant  or  plaintiff  in  error 337 

designating  parts  of  the  record  under  Rule  10,  Subd.  9  of  the  Supreme  Court 

of  the  United  States  by  appellee  or  defendant  in  error 338 

designating  parts  of  record — notice 336 

designating  other  parts  of  record 333 

equity  suit — petition  for  appeal 288 

equity  suit — assignment  of  errors 291 

exceptions — bill  of — common  law 307 

habeas  corpus  matters — deportation  case — petition  for  appeal 309,  310 

habeas  corpus  case — assignment  of  errors 310 

habeas  corpus  case — order  allowing  appeal  and  releasing  prisoner  on  bail 

pending  appeal 311 

habeas  corpus  case — appeal  bond  for  costs 313 

habeas  corpus  case — citation 314 

habeas  corpus  case — supersedeas  bail  bond 312 

(424) 


INDEX 

[references  are  to  pages] 

FORMS—  Continued 

mandate — order  for 340 

mandate  of  the  Supreme  Court  of  the  United  States  to  state  court 356 

mandate  on  order  of  dismissal  for  failure  to  print  transcript  under  Rule  10 

of  the  U.  S.  Supreme  Court 358 

mandate  to  Circuit  Court  of  Appeals 341 

mandate  to  District  Court  of  the  United  States 342 

mandate  to  state  court  on  dismissal  for  failure  to  file  transcript  of  record 

under  Rule  10 354 

notice  designating  part  of  record  under  Rule  10,  Subd.  9  of  the  U.  S. 

Supreme  Court 336 

notice  of  filing  praecipe — under  Rule  8  of  U.  S.  Supreme  Court 332 

order  allowing  appeal  and  releasing  prisoner  on  bail  pending  appeal  in  a 

habeas  corpus  case 311 

order  allowing  writ  of  error  to  highest  state  court 347 

order  allowing  appeal 304 

order  allowing  writ  of  error 304 

order  allowing  writ  of  error  and  admitting  defendant  to  bail 304 

order  for  appearance 335 

order  for  mandate 340 

order  granting  leave  to  file  petition  to  revise  and  ruling  respondent  to 
answer 323 

petition  for  appeal — habeas  corpus  case 309 

petition  for  appeal — deportation  case 309 

petition  for  appeal  in  an  equity  suit 288 

petition  for  certiorari 360 

petition  for  writ  of  error  in  a  common  law  civil  action 292 

petition  for  writ  of  error  in  criminal  case  for  supersedeas  and  bail 302 

petition  for  writ  of  error  from  U.  S.  Supreme  Court  to  highest  court  of  state  345 

petition  for  writ  of  error  and  bail — contempt 299 

petition  on  behalf  of  the  Government  for  writ  of  error  with  assignment  of 

errors 329 

petition  to  revise — bankruptcy 316 

petition  to  revise — answer  to 324 

praecipe  for  record 331 

questions  certified  to  the  Supreme  Court  of  U.  S 367 

record — praecipe  for 331 

record.     See  Designating  Parts  of  Record;  Notice;  Stipulation. 

return  of  writ  of  error 298 

(425) 


INDEX 
[references  are  to  pages] 

FORMS—  Continued 

severance  (summons  and  severance) 357 

statement  of  the  case  and  questions  certified  to  the  Supreme  Court  of  the 

United  States 367 

stipulation  to  omit  certain  parts  from  printed  record  to  avoid  duplication . . .  334 

summons  and  severance  (to  be  made  a  part  of  record) 357 

supersedeas  bail  bond — habeas  corpus  case 312 

writ  of  error 351 

writ  of  error — bail  bond  on 305 

writ  of  error — bond 294 

writ  of  error — form  of  return 298 

writ  of  error  to  Federal  Courts 297 

writ  of  error — order  allowing 304 

writ  of  error  to  highest  state  court — order  allowing 347 

writ  of  error  from  U.  S.  Supreme  Court  to  the  highest  court  of  state — peti- 
tion for 345 

writ  of  error  with  assignment  of  errors  on  behalf  of  Government — petition 

for 329 

writ  of  error  in  criminal  case  for  supersedeas  and  bail — petition  for 302 

writ  of  error  and  bail — contempt — petition  for 299 

writ  of  error  in  common  law  civil  action — petition  for 292 

writ  of  error  to  highest  state  court — bond 348 

FOURTEENTH  AMENDMENT  TO  U.  S.  CONSTITUTION, 

judgments  void — when 104 

confounding  Fifth  Amendment  with  Fourteenth 143 

controls  action  of  state  and  state  courts 143 

Federal  questions — what  constitutes 153,  154 

claims  under 153,  154 

challenging  constitutionality  of  state  statute 153,  154 

"due  process  of  law  " 153,  154,  155 

"equal  protection  of  the  law" 153,  154,  155 

application  and  effect 154 

habeas  corpus  from  state  court 154 

class  legislation  prohibited 155 

embraces  all  agencies  of  state 155 

aliens  included 155 

guaranties 155 

includes  state  judiciary 156 

"  due  process  of  law  " — substance,  not  form,  governs 156,  159 

where  party  had  opportunity  to  be  heard 156 

no  "  due  process  of  law  " — when 156 

State  cannot  prevent  the  object  of  due  process 156 

(426) 


INDEX 

[references  are  to  pages] 

FOURTEENTH  AMENDMENT  TO  U.  S.  CONSTITUTION—  Continued 

"due  process" — applied  to  judicial  proceedings 156,  157 

"due  process" — notice  necessary  before  judgment 157 

question  of  due  service  of  process 157 

"due  process " — denied — decided  by  Supreme  Court 158 

foreign  corporation — service  of  process 158 

"due  process" — synonymous  with  "the  law  of  the  land" 158,  159 

"due  process" — definition 158,  159 

"  due  process  " — as  used  in  Magna  Charta 159 

habeas  corpus  proceedings 192 

FRAUD, 

patent  laws 165 

FRAUDULENT  CLAIMS, 

Court  of  Claims — forfeited  to  Government 168 

FRIVOLOUS  QUESTIONS, 

cause  for  dismissal  of  appeal  or  error 71,  150 

Highest  State  Court 150 

damages  for  delay  in  suing  out  frivolous  writ  of  error 151 

Supreme  Court  of  U.  S. — appellate  procedure 271 

"FULL  FAITH  AND  CREDIT," 

constitutional  provisions 162 

H 

HABEAS  CORPUS  CASES— APPEAL, 

appeals  statutory  and  of  right 188 

from  District  Court  to  Circuit  Court  of  Appeals 188 

from  District  Court  direct  to  Supreme  Court  of  U.  S 188 

writ  of  habeas  corpus  will  issue — when 189 

no  hard  and  fast  rule 189 

mode  of  appeal  prescribed  by  appellate  tribunal — the  Statute 189 

custody  of  prisoner  pending  appeal — Supreme  Court  rules 189 

acts  of  state  courts  pending  appeal  to  Federal  Court  void 190 

appeal  to  U.  S.  Supreme  Court  in  causes  under  state  process — 

certificate  from  Federal  judge  a  prerequisite 190 

special  uses  of  writ — 

issued  in  aid  of  appellate  jurisdiction 190 

extradition  proceedings — identity  of  prisoner 191  (b) 

emigration  proceedings — facts  reviewable 191  (c) 

criminal  cases — constitutionality  of  Act  cannot  be  tested  by 191,  193 

removal  proceedings 191 

(427) 


INDEX 
[references  are  to  pages] 

HABEAS  CORPUS  CASES— APPEAL—  Continued 

indictment — sufficiency  cannot  be  tested  by 191 

cannot  replace  writ  of  error 191 

administration  of  state  law 191 

writ  issued  by  Supreme  Court  of  U.  S. — when 191 

errors  of  law  not  reviewable  by  writ 192 

contempt  before  Congressional  Committee — writ  will  not  lie 193 

deportation  cases 193 

inquiry  limited  to  question  whether  petitioner  had  fair  hearing 193 

right  of  deportation — how  to  be  exercised 194 

release  conditional 194 

challenge  of  jurisdiction  permitted — when 195 

summary  of  the  doctrine 195 

extradition  cases 191  (b),  196 

former  jeopardy 196 

under  process  of  the  House  of  Representatives 196 

orders  final — how  reviewable 23 

order  of  U.  S.  District  Court  in  chambers  not  final 24  (d) 

evidence  reviewable 43 

judgment  of  Circuit  Court  of  Appeals  reviewable  by  certiorari 128  (e) 

order  of  judge  in  chambers  not  reviewable 139  (a) 

advancing  cause  on  motion 274 

forms.     See  Forms. 

HAWAII, 

appeal  and  error  direct  to  Supreme  Court  from  District  Court  for  Hawaii — 

when 59 

U.  S.  District  Court  decisions  reviewable  in  U.  S.  Circuit  Court  of  Appeals — 

when 80 

District  Court — appeal  and  error  lie  to  U.  S.  Circuit  Court  of  Appeals,  Ninth 

Circuit — when 183 

District  Court — appeal  and  error  lie  direct  to  Supreme  Court — when 183 

Supreme  Court — appeal  and  error  to  U.  S.  Supreme  Court 185 

time  for  appeal  and  error 185 

Supreme  Court — appeal  and  error  lie  to  Circuit  Court  of  Appeals — when . .   185 
certiorari — Supreme  Court — 

time  to  present  petition 185 

time  for  return  of  appeal,  error  or  citation 222,  256 

HIGHEST  STATE  COURTS— REVIEW  OF  DECISIONS  BY  SUPREME 
COURT  OF  U.  S. 

method  of  review — by  writ  of  error,  or  certiorari 134 

writ  of  error  or  certiorari — when  either  may  be  invoked 134 

Federal  claim  reviewable  only  by  certiorari — when 135 

(428) 


INDEX 
[references  are  to  pages] 

HIGHEST  STATE  COURTS— REVIEW  OF  DECISIONS  BY  SUPREME 
COURT  OF  U.  S.— Continued 

distinction  between  writ  of  error  and  certiorari 135 

Act  of  Sept.  6,  1916 134,  135,  136 

no  jurisdictional  amount  required 136 

Federal  law  controls  procedure 136 

writ  of  error — 

by  whom  allowed 136 

procedure  indicated 137 

certiorari — procedure  on 137 

time  for  suing  out  writ  of  error  or  certiorari 137 

decisions  reviewable — final  determination  necessary 137 

final  adjudication — what  constitutes 137 

reservation  in  decree  does  not  affect  its  finality — when 138 

foreclosure  decree — when  final 138 

form  of  judgment,  if  final,  does  not  affect  jurisdiction  of  Supreme  Court 138 

decisions  not  reviewable — when 139 

moot  questions  not  reviewable 139 

"Highest  State  Court"  definition 139 

inferior  court  regarded  as  "Highest  State  Court" — when 139 

refusal  of  Highest  State  Court  to  entertain  jurisdiction 140 

every  method  of  obtaining  review  must  be  exhausted 140 

New  York — to  which  court  writ  addressed 140,  141 

writ  of  error  addressed  to  inferior  court — when 140,  141 

writ  of  error — 

who  may  sue  out 141 

joint  parties — who  must  be  named  as  plaintiffs  in  error 141 

when  interests  are  separate — who  may  sue  out  writ 141 

severing  the  record — practice — notice 141 

raising  Federal  question — jurisdictional  prerequisite 142 

Federal  right  must  be  positively  asserted 142 

specific  section  of  statute  or  Constitution  must  be  set  out 142 

confounding  Fifth  Amendment  with  Fourteenth 143 

issue  of  law  must  be  definite 143 

Federal  claim  cannot  be  spelled  out  by  resort  to  judicial  knowledge 143 

raising  Federal  question — no  special  form  required 144 

Federal  question  must  be  raised  in  trial  court  as  a  rule 144 

Federal  question — failure  to  raise  same  in  trial  court — effect  of 144 

setting  up  Federal  claim  for  first  time  in  assignment  of  errors — when  proper. .  144 

Federal  question  first  raised  in  appellate  court — when  seasonable 145 

points  not  raised  in  Highest  State  Court  fatal 145 

certificate  of  State  Chief  Justice  insufficient  to  confer  jurisdiction 145,  146 

Federal  question  must  appear  from  record 145,  146 

Federal  claim  impliedly  passed  upon  by  state  court — when 146 

(429) 


INDEX 
[references  are  to  pages] 

HIGHEST  STATE  COURTS— REVIEW  OF  DECISIONS  BY  SUPREME 
COURT  OF  U.  S.—  Continued 

petitions,  briefs,  and  assignment  of  errors  insufficient  to  prove  question  raised  146 

Federal  question  raised  in  court  below — how  shown 146 

Federal  question  raised  in  petition  for  rehearing 146 

writ  of  error — local  law  considered — when 147 

writ  of  error — review  controlled  by  §  237  Fed.  Jud.  Code 147 

state  court  decision — what  same  must  show 147 

change  of  rule  by  recent  legislation 148 

statement  in  state  court's  opinion — when  insufficient 148 

omission  to  refer  to  Federal  question — when  not  fatal  to  review 148,  149 

Supreme  court  not  limited  to  opinion  of  state  court — when 149 

misconstruction  of  Act  of  Congress — the  record 149 

frivolous  Federal  questions 150 

judgments  sustainable  on  non-Federal  ground — cannot  be  reviewed 150,  151 

example — laches  a  non-Federal  ground 151 

rule  where  Federal  question  is  controlling 151 

frivolous  writ  of  error — damages  for  delay 151 

findings  of  fact  generally  not  reviewable 151,  152 

exceptions 152,  153 

Federal  questions — what  constitutes 153,  154 

Fourteenth  Amendment — claims  under 153,  154 

challenging  constitutionality  of  state  statute 153,  154 

"due  process  of  law" 153,  154,  155 

"equal  protection  of  the  law  " 153,  154,  155 

application  and  effect 154 

habeas  corpus  from  state  court 154 

class  legislation  prohibited 155 

embraces  all  agencies  of  State 155 

aliens  included 155 

guaranties 155 

State  judiciary  included 156 

"due  process  of  law" — substance,  not  form,  governs 156,  159 

where  party  had  opportunity  to  be  heard 156 

no  "due  process  of  law" — when 156 

State  cannot  prevent  the  object  of  "due  process" 156 

"due  process"  applied  to  judicial  proceedings 156,  157 

"due  process"  notice  necessary  before  judgment 157 

question  of  due  service  of  process 157 

"due  process"  denied — decided  by  Supreme  Court 158 

service  of  process  on  foreign  corporation 158 

"due  process"  synonymous  with  "the  law  of  the  land" 158,  159 

"due  process" — definition 158,  159 

"due  process"  as  used  in  Magna  Charta 159 

(430) 


INDEX 
[references  are  to  pages] 

HIGHEST  STATE  COURTS— REVIEW  OF  DECISIONS  BY  SUPREME 
COURT  OF  U.  S.— Continued 

"impairing  obligations  of  a  contract" — 

Federal  claim  under — what  is  sufficient  to  show  same 159,  160 

Supreme  Court  not  bound  by  findings  of  state  court 160 

ordinances 161 

charters  held  inviolable 161 

Federal  statutes — claims  under 162 

"full  faith  and  credit" — constitutional  provisions 162 

Federal  judgment — failure  of  Highest  State  Court  to  give  effect  to ...  .  162,  163 

question  of  res  adjudicata — when 163 

Federal  judgment — force  to  be  given  to  same 163 

judgments  of  the  same  jurisdiction 163 

navigable  waters  of  the  United  States 163,  164 

Federal  and  State  legislation 164 

River  and  Harbor  Act  of  1890 164 

Federal  land  titles 164 

banking  laws  of  the  United  States — questions  under 164,  165 

patent  laws  of  the  United  States — questions  under 165 

mining  laws  of  the  United  States — claims  under 165 

res  adjudicata — questions  of,  not  Federal 165 

bankruptcy  laws  of  the  United  States — claims  under 166 

forma  pauperis — no  writ  of  error  to  state  court 166 

forms.     See  Forms. 

HOUSE  OF  REPRESENTATIVES, 

habeas  corpus  under  process  of 196 


"IMPAIRING  OBLIGATIONS  OF  A  CONTRACT," 

Federal  claim — requisites  for  showing  same 159,  160 

Supreme  Court  of  U.  S.  not  bound  by  finding  of  state  court 160 

ordinances 161 

charters  held  inviolable 161,  162 

IMPRISONMENT, 

contempt  of  Court 206 

(See  Contempt.) 

INDICTMENT, 

Criminal  Appeals  Act — not  reviewable  by  Supreme  Court — when 78 

dismissed — misconstruction  of  statute — reviewable 78 


(431) 


INDEX 
[references  are  to  pages] 

INDICTMENT— Continued 

construction  of  indictment  by  court  below 78 

jurisdiction  of  Supreme  Court — limitations 78 

sufficiency  of  indictment  cannot  be  tested  by  habeas  corpus 191 

removal  proceedings — habeas  corpus 193 

INJUNCTION, 

appeals  direct  to  Supreme  Court — when 73,     74 

appeal  from  interlocutory  order  awarding  same — jurisdiction  Circuit  Court 

of  Appeals 99,  100 

when  refusal  proper 77 

continuing  injunction  pending  appeal 100 

supersedeas  bond  not  sufficient  to  suspend  or  continue  same  pending  appeal  100 

appeal — effect  of,  on  pending  cause 100 

appeal— scope  of 100,  101,  102 

orders  not  reviewable — when 100,  101,  102 

by  Federal  court — to  stay  proceedings  in  state  court 103,  104 

jurisdiction  Supreme  Court  on  direct  appeal — 

restricting  issuance — the  statute 72 

Interstate  Commerce  Cases — direct  appeal  to  Supreme  Court 73 

orders  by  administration  board  or  commission 76 

Supreme  Court  on  review  may  determine  every  question 77 

cannot  restrain  public  officer — when 76 

appeal  from  interlocutory  order  awarding  same.     See  Interlocutory  Order. 

IN  REM, 

process 8 

INSANE  PERSON, 

may  appeal  by  next  friend 33 

INSTRUCTIONS.     See  Charge  to  Jury. 

for  application  for  writ  of  certiorari 123 

INTEREST, 

on  affirmance — Supreme  Court 278 

in  equity 278,  279 

in  admiralty 278,  279 

INTERLOCUTORY  APPEAL, 

certiorari — review  of  decision  of  Circuit  Court  of  Appeals 127 

time  to  appeal 208 

(432) 


INDEX 

[references  are  to  pages] 

INTERLOCUTORY  DECREE, 

when  in  alternative 24  (a) 

U.  S.  District  Court — bankruptcy — how  reviewable 90  (d) 

INTERLOCUTORY  ORDER, 

denying  motion  to  a  discharge — arrest  in  civil  proceedings 24  (e) 

awarding  injunctions  and  receiverships — 

jurisdiction  Circuit  Court  of  Appeals  on  appeal 99f  100 

procedure 100 

time  to  appeal  to  Circuit  Court  of  Appeals 100 

bond.     See  Bond. 

continuing  injunction  pending  appeal 100 

supersedeas  bond  not  sufficient  to  suspend  or  continue  injunction  pend- 
ing appeal 100 

appeal — effect  of,  on  pending  cause 100 

appeal — scope  of,  limited  to  injunction 100 

may  be  set  aside — when 227  et  seq. 

INTERSTATE  COMMERCE  COMMISSION, 

District  Court  order — when  final 22 

orders  not  reviewable 28 

exceptions 28 

order  of  Circuit  Court  of  Appeals — appealable  to  Supreme  Court — when. . .  110 

INTERSTATE  COMMERCE  CASES, 

decision  reviewable  by  writ  of  error 19 

dismissal  order  of  District  Court  reviewable  on  direct  appeal  to  Supreme 
Court — when 64 

interlocutory  injunctions — direct  appeal  to  Supreme  Court 73 

order  of  Circuit  Court  of  Appeals  appealable  to  Supreme  Court — when .  .110,  111 

INTERVENORS, 

may  appeal — when 36,     37 

leave  to  appeal  compelled  by  mandamus 36 

INTERVENTION, 

orders  refusing  intervention  final 22 

right  of  intervention 36 

review  by  appeal  only 37 

bankruptcy — reviewable  by  appeal 89,  90 

ISSUE  OF  LAW, 

Federal  claim — must  be  definite 142 

(433) 


INDEX 
[references  are  to  pages] 

J 

JUDGMENT.  See  also  Decree;  Jurisdiction;  Federal  Decisions — How  and 
when  Reviewable;  Highest  State  Court;  District  of  Columbia;  Hawaii;  Porto 
Rico;  Philippine  Islands;  Alaska. 

void — when 8 

power  to  render  particular  judgment 10 

nature  of 10 

excessive  penalty  annuls  judgment 11 

common  law — how  reviewed 16 

full  faith  and  credit  will  not  be  accorded  where  no  jurisdiction 11 

Federal  Court — mandamus  proceedings  reviewable  by  writ  of  error 19 

Food  and  Drug  Act — reviewable  by  writ  of  error  only 19 

order  setting  aside  judgment  after  term — how  reviewable 19 

must  be  final — jurisdictional  prerequisite 20 

finalty  of  judgment — doubt  resolved  against 20 

final  judgment — defined 20 

final — when 21 

writ  of  prohibition — final 21  (a) 

extra  allowance  for  costs  final 22  (c) 

not  final — when  motion  to  set  aside  pending 23 

U.  S.  Circuit  Court  of  Appeals — not  final — when 24  (c) 

stipulated  judgment  not  reviewable 30 

refusing  naturalization — not  reviewable 30 

Federal  Court — who  may  apply  for  review 32 

bankruptcy — after  adjudication — how  reviewable 33 

criminal  case — any  count  sufficient  to  sustain 53 

prize  causes — how  reviewable 66,  67 

bankruptcy  judgments  reviewable  by  Circuit  Court  of  Appeals 83 

Circuit  Court  of  Appeals — bankruptcy — final  judgments  reviewable  only 

by  certiorari 83 

District  Court — judgment  under  Tucker  Act  reviewable  only  in  Supreme 

Court 99 

Federal  Court  may  enjoin  enforcement  of  a  State  court  judgment — when. .  .  .  104 

State  court — when  void 104 

Circuit  Court  of  Appeals — appeal  and  error  lie  to  Supreme  Court — when 

109,  110 

practice — rules  for 109 

must  be  final 109 

Circuit  Court  of  Appeals — judgments  not  appealable  to  Supreme  Court — 

when 109,110,  111 

contempt — review  of  judgment  of  Circuit  Court  of  Appeals Ill 

criminal — review  of  judgment  of  Circuit  Court  of  Appeals Ill 

no  jurisdictional  amount  required  on  appeal  to  Supreme  Court — when 113 

(434) 


INDEX 
[references  are  to  pages] 

JUDGMENT—  Continued 

patent  cases — appeal  from.     See  Patent  Cases;  Appeal  and  Error, 
copyright  cases — appeal  from.     See  Copyright  Cases;  Appeal  and  Error. 

revenue  law — appeal  to  Supreme  Court  from  judgment 113 

against  revenue  officer — appeal  to  Supreme  Court  from  judgment 113 

deprivation  of  rights  of  citizens  under  Federal  Constitution — appeal  to 

Supreme  Court 113 

injuries  by  conspirators  against  civil  rights 113 

Circuit  Court  of  Appeals  judgments — when  final — Act  Sept.  6, 1916 122 

of  conviction  by  District  Court — how  reviewable 122 

Highest  State  Court — review  by  Supreme  Court.     See  Highest  State  Court; 
Appeal  and  Error;  Writ  of  Error;  Certiorari;  Review. 

judgments  reviewable — final  determination  necessary 137 

final  judgment — what  constitutes 137 

form  of  judgment  does  not  affect  jurisdiction  of  Supreme  Court — 

when 138 

inferior  court — regarded  as  Highest  State  Court — when 139 

State  court — what  decision  must  show 147 

sustainable  on  non-Federal  ground  cannot  be  reviewed 150 

Federal  Court —  failure  of  Highest  State  Court  to  give  effect  to 162,  163 

question  of  res  adjudicata — when 163 

force  to  be  given  to  a  Federal  judgment 163 

same  jurisdiction 163 

adverse  to  United  States — appeal  from  Court  of  Claims 167 

Court  of  Claims — appeal  from 167 

jurisdictional  amount 167 

time  to  appeal 168 

right  to  appeal  from 168 

who  may  not  claim  or  prosecute 168 

written  application  for  appeal  necessary 169 

order  allowing  appeal 169 

record  on  appeal — contents  of 169 

record  on  appeal — time  to  file  same 170 

docketing  case  on  appeal — time 170 

submission  of  appeals  on  printed  briefs 170 

time  limit  ends  at  application  to  allow  appeal 170 

findings  of  fact  and  conclusions  of  law  to  be  made 170 

parties  to  submit  findings  of  fact 171 

applied  to  District  of  Columbia  Claims  Act 171 

Board  of  General  Appraisers — review  of 175,  178 

Court  of  Customs  Appeals — final 175 

Court  of  Appeals  of  District  of  Columbia — reviewable  by  U.  S.  Supreme 

Court — when 182 

construction  of  §  250  Fed.  Jud.  Code 183  (note) 

(435) 


INDEX 
[references  are  to  pages] 

JUDGMENT—  Continued 

Supreme  Court  of  Philippine  Islands — review  by  U.  S.  Supreme  Court — 

procedure  limited  to  certiorari 186 

District  Court  of  Alaska — appeal  and  error  to  Circuit  Court  of  Appeals, 

Ninth  Circuit 186 

District  Court  of  Alaska — appeal  and  error  direct  to  U.  S.  Supreme  Court  187 

civil  contempt — review  allowed — when 201 

criminal  contempt — mode  of  review 206 

entered  in  pursuance  to  mandate — second  appeal  not  entertained 229 

trial  before  the  Court  in  common  law  cases — review  by  U.  S.  Supreme  Court. 

See  Trial  before  the  Court  in  Common  Law  Cases, 
bill  of  exceptions.     See  Bill  of  Exceptions. 

power  of  court  to  amend  its  own  judgment 282 

JUDICIAL  CODE.  See  Federal  Judicial  Code;  Judiciary  Acts. 

JUDICIAL  SALE, 

purchaser  at  judicial  sale  may  appeal 53 

JUDICIARY  ACTS, 

new  legislation — Act  Sept.  6,  1916 122 

Circuit  Court  of  Appeals  judgments — when  final 122 

certiorari  from  Supreme  Court  to  Circuit  Court  of  Appeals 122 

instructions  for  application  for  certiorari 123 

Highest  State  Court  decisions — review  by  Supreme  Court — Act  Sept.  6, 1916 

134,  135 

writ  of  error  from  state  court — review  controlled  by  §  237 147 

misconstruction  of  Act  of  Congress — the  record 149 

claims  under  Federal  Statutes — review 162 

Court  of  Claims — appeals  from — §  181  Fed.  Jud.  Code 167 

jurisdictional  amount — §  242 167 

time  to  appeal — §  243 168 

fraudulent  claims  forfeited  to  Government — §  172 168 

right  to  appeal— §  182 168 

who  may  not  claim  or  prosecute — §  154 168 

Court  of  Customs  Appeals— §  188  Fed.  Jud.  Code 172 

court  never  closes — §  189 173 

executive  officer  of  Court — §  190 173 

Clerk  of  Court — powers  and  duties — §  191 173 

assistant  clerks,  etc.,  §  192 174 

place  for  holding  Court— §  193 174 

powers  of  the  Court — §  194 174 

jurisdiction  of  the  Court — §  195 175 

transfer  of  review  from  other  courts — §  196 175 

time  to  take  appeal — §  196 175 

(436) 


INDEX 

[references  are  to  pages] 

JUDICIARY  ACTS—  Continued 

Court  of  Customs  Appeals — Continued 

cases  pending  transferred — §  197 176 

time  for  appeal— §  198 176 

record  on  appeal — §  198 , 176 

no  delay  in  hearing — §  199 176 

call  of  calendar—!  199 176 

appeal  and  error  from  Court  of  Appeals  of  District  of  Columbia  to  Supreme 

Court— §250 182 

construction  of  §  250 183  (note) 

appellate  jurisdiction  IT.  S.  Circuit  Court  of  Appeals — §  128 184 

appeal  and  error  from  District  Court  of  Porto  Rico  to  U.  S.  Circuit  Court  of 

Appeals— §  128 184 

appeal  and  error  from  District  Court  of  Hawaii  direct  to  Supreme  Court — . . .. 

§238 184 

appeal  and  error  from  Supreme  Court  of  Porto  Rico  to  U.  S.  Supreme  Court 

—§246 185 

appeal  and  error  from  Supreme  Court  of  Hawaii  to  U.  S.  Supreme  Court — 

§  246 185 

certiorari  from  Supreme  Court  of  Porto  Rico  to  U.  S.  Supreme  Court — 

§  246 185 

certiorari  from  Supreme  Court  of  Hawaii  to  U.  S.  Supreme  Court — §  246. . . .   185 
appeal  and  error  from  Supreme  Court  of  Porto  Rico  to  Circuit  Court  of 

Appeals — when — §  246 185 

appeal  and  error  from  Supreme  Court  of  Hawaii  to  Circuit  Court  of  Appeals 

— when— §  246 185 

appeal  from  Supreme  Court  of  Philippine  Islands  to  U.  S.  Supreme  Court — 

procedure  limited  to  certiorari 186 

appeal  and  error  from  District  Court  of  Alaska  to  Circuit  Court  of  Appeals, 

Ninth  Circuit— §§  134,  135 186 

appeal  and  error  from  District  Court  of  Alaska  direct  to  Supreme  Court — 

§  247 187 

habeas  corpus — 

modeof  appeal— §  765  Rev.  Stat 188,  189 

acts  of  state  courts  pending  appeal  to  Federal  Court  void — §  766  Rev. 

Stat 190 

administration  of  state  law — §  753  Rev.  Stat 191 

contempt  of  Court — power  of  Federal  Courts — §  268  Fed.  Jud.  Code 197 

time  for  appeal,  etc.,  to  Supreme  Court — Act  Sept.  6,  1916 208 

time  for  appeal  or  error  to  Circuit  Court  of  Appeals — Act  Mar.  3, 1891. ...208,  209 

appeal  and  error — power  of  judge  of  Circuit  Court  of  Appeals — §  132 211 

appeal  and  error — assignment  of  errors — necessity  for  §  997  Rev.  Stat 215 

appeal  by  both  parties — one  record  sufficient — §  1013  Rev.  Stat 218 

supersedeas  a  matter  of  right — §  1007  Rev.  Stat 225 

(437) 


INDEX 
[references  are  to  pages] 

JUDICIARY  ACTS— Continued 

trial  before  court  in  common  law  cases — §  700  Rev.  Stat 245 

record  on  appeal  in  equity — §  698  Rev.  Stat 252 

costs  as  applied  to  §§  238-241  Fed.  Jud.  Code 279 

JURISDICTION, 

Supreme  Court  of  U.  S. — 

appeal  and  error  from  U.  S.  District  Court  direct  to  Supreme  Court  of 

U.  S.     See  Supreme  Court  of  U.  S. 
appeal  and  error  from  U.  S.  Circuit  Court  of  Appeals  to  Supreme  Court 

of  U.  S.     See  Supreme  Court  of  U.  S. 
certiorari  from  U.  S.  Circuit  Court  of  Appeals.     See  Certiorari, 
writ  of  error  or  certiorari  from  Highest  State  Courts.     See  Highest  State 

Court, 
appeal  and  error  from  Court  of  Claims.     See  Court  of  Claims, 
certiorari  from  Court  of  Customs  Appeals.     See  Court  of  Customs 

Appeals, 
appeal  and  error  from  Court  of  Appeals  of  District  of  Columbia.     See 

District  of  Columbia. 
appeal,  error,  and  certiorari  from  courts  of  Porto  Rico.     See  Porto  Rico, 
appeal,  error,  and  certiorari  from  courts  of  Hawaii.     See  Hawaii, 
appeal  and  error  from  courts  of  Alaska.     See  Alaska, 
certiorari  from  Supreme  Court  of  Philippine  Islands.     See  Philippine 

Islands, 
habeas  corpus — appeal  from  District  Courts  of  U.  S.  and  State  courts. 

See  Habeas  Corpus, 
appeal  from  interlocutory  injunctions — Interstate  Commerce  Matters . .     73 
interlocutory  injunctions  restraining  state  statutes  and  public  service 

commissions 72 

exclusive  on  constitutional  questions — when 67 

retained  when  Federal  question  was  decided  pending  appeal 70 

appeals  by  Government — Criminal  Appeals  Act 77,  78 

bankruptcy.     See  Bankruptcy. 
U.  S.  Circuit  Court  of  Appeals.     See  U.  S.  Circuit  Court  of  Appeals;  Bank- 
ruptcy; Admiralty;  Trademarks;  Copyrights;  Criminal  Cases;  Habeas 
Corpus;  Contempt;  Federal  Trade  Commission. 
Highest  State  Court.     See  Highest  State  Court. 
Court  of  Claims.     See  Court  of  Claims. 
Court  of  Customs  Appeals.     See  Court  of  Customs  Appeals, 
bankruptcy.     See  Bankruptcy,  U.  S.  Circuit  Court  of  Appeals;  Certiorari; 
Petition  to  Revise;  Summary  Proceedings;  Adverse  Claims. 

limit  of  jurisdiction  fixed  by  Congress 4 

fundamental  question 5 

appellate  jurisdiction — when  retained 5 

(438) 


INDEX 

[references  are  to  pages] 

JURISDICTION— Continued 

defined 6 

essentials  of 6 

scope  of  jurisdiction  generally 7 

erroneous  ruling  does  not  affect 7 

authority  to  consider  jurisdiction  incident  to  general  power 7 

over  subject  matter  conferred  by  authority 8 

over  person  obtained  by  process 8 

over  subject  matter  cannot  be  conferred  by  consent 9 

must  be  retained — when 9 

effect  of  want  of 11 

error  of  court  does  not  avoid  jurisdiction 11 

full  faith  and  credit  will  not  be  accorded  where  no  jurisdiction 11 

of  court  as  a  Federal  court  in  issue 59,  60 

U.  S.  District  Court  as  Federal  Court — definition 61 

mere  challenge  of  jurisdiction  insufficient  for  right  of  direct  appeal — when ...  62 

affidavits  attached  to  plea  of  jurisdiction  considered  on  appeal 62 

challenging  jurisdiction  as  court  of  equity  insufficient  for  direct  appeal 62 

issue  of  jurisdiction  as  understood  by  the  parties 63 

capital  cases — test  of  jurisdiction  of  Supreme  Court 63 

when  no  question  of  jurisdiction  certified — direct  appeal  from  District  Court 

to  Supreme  Court  does  not  lie 64 

necessity  for  certifying  question  of  jurisdiction 64 

U.  S.  Circuit  Court  of  Appeals  over  Federal  questions — when 68 

habeascorpus — deportation  cases — challengeof  jurisdiction  permitted — when  195 

mandamus  to  compel  Circuit  Court  of  Appeals  to  take  jurisdiction  in  contempt  206 

appeal  and  error — jurisdiction  transferred  to  appellate  tribunal — when..  .  .  227 

lack  of  jurisdiction  apparent — appeal  or  error  dismissed 273 

precedence — advancing  cause  on  motion  when  jurisdiction  is  only  question  274 

JURISDICTIONAL  AMOUNT, 

not  required  in  direct  appeal  to  U.  S.  Supreme  Court — when 60 

bankruptcy — appeal  to  Circuit  Court  of  Appeals 89,  90 

appeal  and  error  to  Supreme  Court  from  Circuit  Court  of  Appeals .  .  109, 110,  112 

bankruptcy — appeal  to  Supreme  Court  from  Circuit  Court  of  Appeals.  ..112,  113 
appeal  to  Supreme  Court  from  Circuit  Court  of  Appeals — dismissal  for  want 

of  jurisdictional  amount 112,  113 

not  required  on  appeal  to  Supreme  Court — when 113 

how  shown 114 

certiorari — no  jurisdictional  amount 127 

Highest  State  Court  decisions — review  by  Supreme  Court 136 

Court  of  Claims — appeal  from 167 

Alaska — District  Court — appeal  and  error  to  Circuit  Court  of  Appeals, 

Ninth  Circuit 186 

(439) 


INDEX 

[references  are  to  pages] 

JURISDICTIONAL  CLAIM, 

by  reason  of  illegal  service  of  process 62 

JURISDICTIONAL  FACTS, 

certain — what  constitutes 9 

quasi — what  constitutes 9 

JURISDICTIONAL  ISSUE, 

as  understood  by  parties 63 

JURISDICTIONAL  QUESTION.     See  Federal  Question. 

necessity  of  trial  court  certifying  same 64 

review  by  Supreme  Court  limited  to — when 64 

mode  of  certification  for  direct  appeal  to  Supreme  Court  from  District  Court  65 
sufficient  certification  of  jurisdictional  question  for  direct  appeal  to  Supreme 

Court — what  constitutes 65 

certificate  of  trial  judge  not  required — when 66 

decree  equivalent  to  certificate — when 66 

time  to  issue  certificate 66 

JURY.     See  Charge  to  Jury. 

misconduct  of  jury 57 

JURYMAN, 

attempt  to  influence  on  street 200 

JURY  TRIAL, 

weight  of  evidence  not  reviewable — when 42 

remarks  of  Court  reviewable — when 42 

contempt  of  Court — no  jury  trial 198 

L 

LACHES 

as  non-Federal  ground — judgment  not  reviewable 151 

LANDLORD  AND  TENANT.     Bankruptcy 90 

LAW  LIBRARY  OF  U.  S.  SUPREME  COURT, 

use  of 275 

LAW  OF  THE  LAND.     Definition 158 

LEGAL  ISSUES, 

when  considered  by  reviewing  court 45 

(440) 


INDEX 

[references  are  to  pages] 

LICENSE  FEES, 

Federal  Court  enjoining  proceedings  in  State  Court 103 

LOCAL  LAW, 

writ  of  error — local  law  considered  when 147 

LOCAL  PRACTICE  OF  STATE, 

or  under  Common  Law — distinction  between 56 

M 

MAGNA  CHARTA.     "Due  process  of  law, "  as  used  in 159 

MANDAMUS.    See  Mandamus  Proceedings. 

order  granting  or  refusing — final 22  (g) 

power  of  Circuit  Court  of  Appeals  to  issue  same  in  aid  of  appellate  jurisdic- 
tion    82 

admiralty — writ  may  be  awarded — when 98 

Supreme  Court  may  issue  same — when 118 

issued  in  aid  of  appellate  jurisdiction 118 

allowed  in  absence  of  appellate  remedy 118 

general  use  of 118,  119 

when  same  cannot  be  issued 118 

when  inferior  court  acts  without  authority 119 

to  enforce  ministerial  duty  exclusively 119 

to  compel  a  judge  to  decide  or  enter  judgment  in  a  case 119 

to  compel  reversal — writ  will  not  lie — when 120 

judgment  of  District  Court  on  mandamus  reviewable  by  writ  of  error 120 

jurisdiction  of  U.  S.  District  Court 120 

to  compel  Circuit  Court  of  Appeals  to  entertain  jurisdiction  in  contempt  206 

death  of  a  party — mandamus  does  not  reach  office 262 

MANDAMUS  PROCEEDINGS, 

Federal  Court  judgment  reviewable  by  writ  of  error 19 

MANDATE, 

of  Circuit  Court  of  Appeals — 

interpretation 114 

appeal  from  erroneous  interpretation  of 114 

effect  of  certiorari  on  same 130 

of  Supreme  Court — on  certiorari 130 

of  Court  of  Customs  Appeals  to  Board  of  General  Appraisers 178,  180 

second  appeal  subsequent  to  mandate 229 

decree  entered  in  pursuance  to  mandate — second  appeal  not  entertained 229 

(441) 


INDEX 

[references  are  to  pages] 

MANDATE— Continued 

effect  of  order  staying  mandate 278 

costs  to  be  inserted  in 279 

issues — when 280,  281 

admiralty — Second  Circuit — mandate  issues  when 280,  281 

recalling  mandate 281 

forms.     See  Forms. 

MARITIME  JURISDICTION.     See  Admiralty. 

MASTER'S  FINDINGS, 

how  far  conclusive 27 

considered  prima  facie  correct  generally 27 

MASTER'S  REPORT, 

review  of 26 

exceptions  taken  to 26 

assignment  of  errors  on  appeal  from  decree  confirming 218 

MERITS  OF  CAUSE.     Distinguished  from  jurisdiction 7 

MINING  LAWS  OF  UNITED  STATES, 

claims  under  as  Federal  questions 165 

MISJOINDER, 

of  parties  or  causes  of  action  must  be  raised  below 45 

MISTAKE.     Choice  between  appeal  and  writ  of  error 85,     86 

MODELS, 

evidence  in  lower  court — procedure  on  appeal  or  error 252 

MOOT  QUESTIONS, 

definition 29 

not  reviewable 29 

costs — questions  of  not  reviewable 29 

extrinsic  evidence  permissible  to  prove  same 29 

Highest  State  Court  decisions  not  reviewable 139 

MOTIONS, 

order  denying  motion  to  a  discharge  interlocutory — when 24  (e) 

new  trial — refusal  of  Court  to  entertain  motion — reviewable 43 

new  trial — exclusion  of  affidavits 44 

(442) 


INDEX 
[references  are  to  pages] 

MOTIONS— -Continued 

to  withdraw  case  from  jury — when  to  be  made 47 

Court  of  Customs  Appeals — time  to  present  same  at  sessions 179 

made  dehors  the  record  preserved  by  bill  of  exceptions 238 

certiorari  for  diminution  of  record 263 

requisites 263 

time  for  making  motion 263 

denied  for  negligence  in  preparation  of  record 264 

Supreme  Court  of  U.  S 270 

in  writing 270 

contents 270 

heard — when 270 

time  for  argument 271  (c) 

admiralty  appeals — notice 271  (d) 

U.  S.  Circuit  Court  of  Appeals — 

in  writing 271 

contents 271 

time  for  argument 271 

notice 271 

to  dismiss  or  affirm — 

equity  motion  to  dismiss — practice  on 46 

general  practice  in  Supreme  Court 271 

general  practice  in  Circuit  Court  of  Appeals 271 

heard  on  briefs  only 271 

rule  of  Supreme  Court 272 

notice — time 272 

when  appeal  taken  for  delay 272 

frivolous  questions 272 

notice  necessary  on  motion  to  dismiss 272 

precedence — advancing  cause — motion  must  be  printed 273,  274  et  seq. 

N 
NATURALIZATION  CASES 30 

NAVIGABLE  WATERS  OF  UNITED  STATES, 

decisions  of  Highest  State  Court  reviewable  by  Supreme  Court 163,  164 

Federal  and  State  legislation 164 

River  and  Harbor  Act  of  1890 164 

NEW  TRIAL, 

refusal  to  entertain  motion  reviewable 43 

excluding  affidavits  on  motion  for  new  trial 44 

(443) 


INDEX 
[references  are  to  pages] 

NEW  YORK, 

State  Courts — all  cases  reviewable  by  appeal  only 16 

review  Highest  State  Court  decision  by  Supreme  Court  of  U.  S. — 

to  which  court  writ  of  error  addressed 140,  140 

bill  of  exceptions — time  for  signing  same 243,  244 

opinions  of  Supreme  Court  of  New  York  form  part  of  record 251 

NOTICE, 

admiralty — limiting  questions  on  appeal 99 

certiorari 124,  125 

record — additional  portions  added  to 234 

severing  the  record 141 

no  due  process  of  law  if  judgment  without  notice 156 

citation — notice  to  adverse  party 221,  222 

motion  to  dismiss  or  affirm — time 271,  272 

forms.     See  Forms. 

O 

OBLIGATIONS— contract— impairment  of 159,  160 

OFFICER, 

death  of  public  officer  abates  suit 262 

OPINIONS, 

of  court  are  part  of  record 233 

of  court  annexed  to  record  on  appeal  or  error  to  Supreme  Court 251 

of  state  courts — rule  generally 251 

of  state  courts  form  part  of  record — when 251 

of  Supreme  Court  of  New  York  are  part  of  record 251 

of  court — how  preserved  in  court 280 

ORDER, 

of  court — when  void 11 

setting  aside  judgment  after  term — how  reviewable 19 

limiting  liability  in  admiralty 22 

habeas  corpus  final — how  reviewable 23 

setting  aside  sale — not  final — who  may  appeal 23 

not  final — when 24  (b) 

habeas  corpus  by  U.  S.  District  Court  in  chambers — not  final 24  (d) 

denying  motion  to  a  discharge — arrest  in  civil  proceedings  interlocutory.  .24  (e) 

quashing  execution  not  final 25  (f) 

appointing  commissioners  to  assess  damages — not  final 25  (d) 

(444) 


INDEX 

[references  are  to  pages] 

ORDER—  Continued 

Interstate  Commerce  Commission  not  reviewable 28 

exceptions 28 

in  arrest  case  not  reviewable  on  direct  appeal  to  Supreme  Court  from  Dis- 
trict Court — when 63 

dismissal  order  of  District  Court  in  Interstate  Commerce  case  reviewable 

on  direct  appeal  to  Supreme  Court — when 64 

certification  of  jurisdictional  question — how  presented  by  order  allowing 

appeal  to  Supreme  Court 65 

interlocutory  injunctions — order  by  administrative  board  or  commission. . .     76 

Supreme  Court  on  review  may  determine  every  question 77 

cannot  restrain  public  officer — when 77 

District  Court — reviewable  by  petition  to  revise — when 86-89 

interlocutory  injunction — not  reversible  by  Circuit  Court  of  Appeals — when, 

100,  101,  102 

Federal  Trade  Commission — reviewable  by  Circuit  Court  of  Appeals 105 

of  Circuit  Court  of  Appeals — appeal  and  error  lies  to  Supreme  Court — when, 

109,  110 

practice — rules  for 109 

must  be  final 109 

not  appealable  to  Supreme  Court — when 109,  110,  111 

administrative  orders.     See  Administrative  Orders. 

allowing  writ  of  error  necessary 136,  137 

habeas  corpus — order  of  judge  in  chambers  not  reviewable 139  (a) 

allowing  appeal  from  Court  of  Claims 169 

District  Court — contempt — review  allowed  when 201,  202 

appeal  or  error — order  allowing  same 213 

staying  mandate — effect  of 278 

forms — See  Forms. 

ORDINANCES, 

"impairment  of  contract  obligations" 161 


PARTIES.     See  Who  may  Apply  for  Review  of  Judgment  or  Decree  Entered 
in  a  Federal  Court. 

misjoinder  must  be  raised  below 45 

citation — parties  to 223 

death  of  a  party  pending  appeal  or  error.     See  Death  of  a  Party. 

substitution  not  permitted — when 262 

PARTITION  SUIT, 

decree  final — when 25  (c) 

(445) 


INDEX 
[references  are  to  pages] 

PATENT  CASES, 

appeals  to  U.  S.  Circuit  Court  of  Appeals.     See  U.  S.  Circuit  Court  of 
Appeals. 

concurrent  findings  of  fact  will  not  be  disturbed — when 26 

appeal  and  error  to  Supreme  Court  from  Circuit  Court  of  Appeals — 

no  jurisdictional  amount  required 113 

appeal  and  error  from  Supreme  Court  of  District  of  Columbia 113 

jurisdictional  amount  not  required  on  appeal — when 113 

certiorari — writ  granted  when 130  (j) 

decision  of  Highest  State  Court  not  reviewable — when 165 

from  U.  S.  Circuit  Court  of  Appeals  to  U.  S.  Supreme  Court.     See  Certiorari. 
U.  S.  Circuit  Court  of  Appeals,  Eighth  Circuit — 

record  and  briefs — form  and  size 265 

PATENT  LAWS, 

questions  under — when  validity  not  invalid,  no  Federal  question 165 

PENDING  CAUSE.     Effect  of  appeal  in 101 

PERJURY, 

in  civil  proceeding — when  not  contempt 204 

PETITION  FOR  APPEAL, 

to  Supreme  Court  from  District  Court 212 

to  Circuit  Court  of  Appeals  from  District  Court 211 

forms.     See  Forms. 

PETITION  FOR  CERTIORARI.     See  Certiorari, 
forms.     See  Forms. 

PETITION  FOR  REHEARING, 

Federal  question  not  properly  raised  in 146 

after  appeal  or  error  perfected — procedure 228 

Circuit  Court  of  Appeals — Ninth  Circuit — 

form  and  size 266 

Supreme  Court  of  U.  S. — 

time  for  petition 278 

requisites 278 

PETITION  FOR  WRIT  OF  ERROR, 

insufficient  to  prove  Federal  question  raised  below 146 

to  Supreme  Court  from  District  Court 212 

to  Circuit  Court  of  Appeals  from  District  Court 211 

forms.     See  Forms. 

(446) 


INDEX 
[references  are  to  pages] 

PETITION  TO  REVISE, 

bankruptcy — review  by  Circuit  Court  of  Appeals 83 

when  proper  mode  of  review 85 

Second  Circuit — time  for  serving  and  filing 86 

appeal  and  petition  to  revise  exclusive  of  each  other 86 

specific  error  of  law  must  be  assigned 86 

used — when 86 

decisions  and  orders  of  District  Court  reviewable  by 86,  87 

decrees  must  have  definiteness  and  finality 88 

evidence  may  be  reviewed 88 

questions  of  law  only  reviewable  by 88 

election  of  trustee — how  reviewable 88 

bankruptcy — civil  contempt  reviewable  by 206 

form — original  petition  to  revise 316 

form — answer  to  petition  to  revise 324 

PHILIPPINE  ISLANDS, 

Supreme  Court — review  by  U.  S.  Supreme  Court  limited  to  certiorari 185 

certiorari  to  Supreme  Court — time 208 

time  for  return  of  appeal,  error,  or  citation 222,  256 

PLEADINGS, 

rulings  on  amendments  reviewable — when 45 

defect  in  pleadings  must  be  raised  below 46 

facts  and  law  must  be  well  pleaded  in  suit  arising  under  Federal  Constitu- 
tion       69 

presenting  Federal  and  non-Federal  ground — judgment  not  reviewable — 

when 150 

example — laches  as  non-Federal  ground 151 

contempt  proceedings — nature  of 204 

PLENARY  SUITS, 

bankruptcy — when  and  how  brought 90,  91,     92 

PORTO  RICO, 

District  Court — appeal  and  error  lie  to  U.  S.  Circuit  Court  of  Appeals  for 

First  Circuit— when 183,  184 

time  for  appeal  and  error 184 

District  Court — appeal  and  error  lie  direct  to  Supreme  Court — when. . . .  182,  183 

Supreme  Court — appeal  and  error  to  U.  S.  Supreme  Court 184 

time  for  appeal  and  error 185 

Supreme  Court — appeal  and  error  lies  to  U.  S.  Circuit  Court  of  Appeals — 

when 185 

time  for  appeal  and  error 185 

(447) 


INDEX 

[references  are  to  pages] 

PORTO  RICO—  Continued 
certiorari — 

time  to  present  petition 185 

time  for  return  of  appeal,  error,  or  citation 222,  256 

POWER  OF  THE  COURT.     See  Court. 

PRACTICE.     See  Appellate  Procedure;  Procedure. 

demurrer  or  motion  to  dismiss 46 

appeal  and  error  to  Supreme  Court  from  Circuit  Court  of  Appeals — rules  of  109 

certified  question  to  Supreme  Court  from  Circuit  Court  of  Appeals,  114, 115,  116 

certiorari  from  Supreme  Court — instructions  for  application  for  writ 123 

severing  the  record 141 

Federal  question — method  of  raising  same 142 

PRECIPE, 

for  record  on  appeal  to  be  filed 235 

notice 235 

time  to  designate  portions  of  record 235 

practice  in  U.  S.  Supreme  Court 235 

practice  in  Circuit  Court  of  Appeals 235 

for  record  on  appeal  in  equity 249 

form.     See  Forms. 

PRAYER  FOR  REVERSAL.     See  Assignment  of  Errors. 

appeal  and  error 216 

PRECEDENCE.     Advancing  causes  on  motion— U.  S.  Supreme  Court 274 

PRINTED  ARGUMENTS.     See  Arguments. 

PRIZE    CAUSES, 

direct  appeal  to  Supreme  Court  from  District  Court — how  reviewable 66 

amendments  permitted — when 67 

Supreme  Court  of  U.  S. — jurisdiction 94 

Court  of  Appeals  District  of  Columbia — appeal  or  error  to  Supreme  Court  182 

District  Court  of  Porto  Rico — appeal  and  error  direct  to  Supreme  Court 183 

District  Court  of  Hawaii — appeal  and  error  direct  to  Supreme  Court 184 

District  Court  of  Alaska — appeal  and  error  direct  to  Supreme  Court 186 

PROCEDURE.     See  Appellate  Procedure;  Practice. 

State  procedure  not  applicable 16 

appeal  from  interlocutory  orders  awarding  injunctions  and  receiverships 100 

Fifth  Amendment — in  Federal  Courts 143 

(448) 


INDEX 
[references  are  to  pages] 

PROCEDURE— Continued 

Fourteenth  Amendment — in  State  courts 143 

Seventh  Amendment — State  courts  not  bound  by 143 

appellate  procedure — preliminary  steps  for  securing  appeal  and  error.    See 
Appellate  Procedure. 

PROCESS, 

illegal  service  of  process — jurisdictional  claim 62 

service  of  process — Federal  Trade  Commission 107 

Court  of  Customs  Appeals 177 

time  for  return  of  writ 177 

habeas  corpus — 

appeal  to  U.  S.  Supreme  Court  under  State  process — prerequisite 190 

House  of  Representatives 196 

Supreme  Court  of  U.  S 284 

time  for  service 284 

PROHIBITION.     See  Writ  of  Prohibition. 

PROPERTY, 

actual  possession  taken  by  Bankruptcy  Court — when  and  how 91 

PURE  FOOD  LAW.     See  Food  and  Drug  Act. 

Q 

QUASI-JURISDICTIONAL  FACTS 9 

QUESTIONS  OF  FACT, 

must  be  submitted  to  jury 51 

not  reviewable  by  petition  to  revise 88 

QUESTIONS  OF  LAW, 

review  confined  to — when 42 

reviewable  by  petition  to  revise 88 

R 

RECALLING  MANDATE.     See  Mandate. 

RECEIVER, 

statutory  receiver  of  corporation  may  appeal 34 

common  law  receiver  cannot  appeal 35 

(449) 


INDEX 
[references  are  to  pages] 

RECEIVERSHIPS, 

appeal  from  interlocutory  order  awarding  same — ■ 

jurisdiction  of  Circuit  Court  of  Appeals 99 

procedure 99 

time  to  appeal 99 

bond.     See  Bond. 

effect  of  appeal  on  pending  cause 100 

RECORD.     See  Record  in  Equity  following. 

severance  of  record — procedure 35 

special  notice  of  severance  unnecessary — when 35 

severance  of  record  by  amendment  to  bring  in  omitted  parties 36 

severance — waiver  of 36 

severance — when  appeal  or  error  will  be  dismissed 36 

persons  not  parties  to  record — when  heard 37 

deportation  case — record  reviewable 43 

habeas  corpus  case — record  reviewable 43 

error  in  record  presumptively  injurious  to  appellant 44 

direct  appeal  to  Supreme  Court  from  District  Court — what  record  must 

show 65 

mode  and  sufficiency  of  certification  of  jurisdictional  question — what  record 

must  show 65 

admiralty.     See  Admiralty. 

certified     questions — whole     record     considered     by     Supreme     Court — 

when 115 

clerk's  fee  must  be  paid  before  record  furnished 117 

must  be  furnished  to  Supreme  Court — when 117 

certiorari — requisites  for  filing  record 123,  124 

certiorari  brings  up  whole  record 125 

severing  the  record — practice — notice 141 

issue  of  law  must  be  definite 143 

Federal  question  involved  must  appear  from  record 145,  146 

misconstruction  of  Act  of  Congress 149 

"impairing  obligations  of  a  contract " — Federal  claim  how  shown 159 

Court  of  Claims — appeals  from — 

contents  of  record 169 

time  to  file  record 170 

Court  of  Customs  Appeals 176 

printing,  filing,  and  serving 179 

form  and  size 179 

deposit  of  amount  of  cost  of  printing 179 

bankruptcy — 

contents  of  record  on  appeal 212 

joint  parties  on  appeal  must  unite  or  sever  record 212 

(450) 


INDEX 
[references  are  to  pages] 

RECORD— Continued 

appeal  and  error — necessity  for  filing  transcript  of  record 215 

appeal  by  both  parties — one  record  sufficient 219 

when  not  filed  in  time — effect 255,  256 

second  appeal 229 

definition 232 

cannot  be  impeached 232 

duplications  in  record  not  permitted 232 

"common  law  record " — contents 233 

papers  in  record — how  incorporated  and  certified 233 

opinions  of  court  are  part  of  record 233 

writ  cf  error — record  how  made  and  returned 234 

diligence  required  of  plaintiff  in  error 234 

Rule  8  of  Supreme  Court  of  U.  S 234 

Rule  14  of  Circuit  Court  of  Appeals,  Second  Circuit 234 

bill  of  exceptions  must  be  included 234 

praecipe  to  be  filed 235 

notice 235 

time  to  designate  portions  of  record 235 

practice  in  U.  S.  Supreme  Court 235 

practice  in  Circuit  Court  of  Appeals 235 

form.     See  Forms. 

common  law  requisites  must  be  included 235 

stipulating  portions  of  record 236 

time  for  return  of  record 236 

extension 236 

must  be  complete 236 

reference  to  other  record  not  permitted 236 

bill  of  exceptions.     See  Bill  of  Exceptions. 

must  show  exceptions  were  taken  at  trial 244 

filing  record  in  appellate  courts — 

time 255 

time  extended — how 255,  256 

failure  to  comply  with  rule — effect 255 

failure  to  file  record  in  time  deprives  appellate  court  of  jurisdic- 
tion  255,  256 

rules  are  directory  only 258 

motion  to  dismiss  for  failure  to  file  in  time 273 

settling  the  record — 

time  for  filing  statement  of  errors 258 

printing  the  record — 

clerk  to  demand  estimated  cost 258 

time  for  paying  estimated  cost  of  printing  record 258 

time  for  designating  parts  to  be  printed 258 

(451) 


INDEX 
[references  are  to  pages] 

RECORD— Continued 

printing  the  record — Continued 

time  for  designating  additional  parts  to  be  printed 258 

court  may  direct  printing  of  other  parts 258 

material  part  of  record  not  printed — effect  of 258 

unnecessary  parts  of  record  printed — effect  of 258 

fees  of  clerk 258 

appeal  or  error  from  final  judgment  or  decree — 

fees  of  clerk  of  Circuit  Court  of  Appeals  for  supervising  printing 

of  transcript  abolished 259 

Second  Circuit — practice 259 

time  for  serving  and  filing  copies  of  transcript 259 

number  of  copies  to  be  printed 259 

clerk  cannot  charge  when  printed  copies  are  supplied 260 

cost  of  printing  record  to  be  taxed  against  losing  party 2G1 

exception — judgment  against  the  United  States 261 

preparing  record — costs 258  et  seq. 

manuscript  copy  of  record — costs 260 

filing  printed  records  used  in  court  below 260 

time  for  filing  and  serving 260 

number  of  copies 260 

filing  printed  records  used  in  State  court  in  U.  S.  Supreme  Court 261 

number  of  copies  to  be  filed 260 

certiorari  for  diminution  of  record 263,  264 

motion  for — requisites 263 

time  for  making  motion 263 

motion  denied  for  negligence  in  preparation  of  record 264 

Supreme  Court  of  U.  S. — 

form  and  size  of  printed  records 264 

U.  S.  Circuit  Court  of  Appeals — 

form  and  size  of  printed  records — 

First  Circuit 264 

Second  Circuit 264 

Third  Circuit 264 

Fourth  Circuit 264 

Fifth  Circuit 265 

Sixth  Circuit 265 

Seventh  Circuit 265 

Eighth  Circuit 265 

Ninth  Circuit 266 

motions  to  dismiss — 

time  for  filing  record 273 

before  record  is  printed — dismissal  of  appeal  or  error — when 272 

forms.     See  Forms. 

(452) 


INDEX 

[references  are  to  pages] 

RECORD  IN  EQUITY, 

admonition  to  the  Bar  to  prepare  their  records  carefully 248 

U.  S.  Circuit  Court  of  Appeal,  Fifth  Circuit — warning 248 

taxing  costs  against  attorneys — when 249 

on  appeal — 

Equity  Rule  75  of  U.  S.  Supreme  Court 249 

abstracting  testimony 249 

praecipe 249 

notice  and  service 249 

Equity  Rule  76  of  U.  S.  Supreme  Court 250 

reduction  and  preparation 250 

costs  for  infraction  of  rules  of  court 250 

correction  of  omissions 250 

Equity  Rule  77  of  U.  S.  Supreme  Court 250 

agreed  statement 250 

bankruptcy — 

appeal  to  U.  S.  Supreme  Court — contents  of  record 250 

mistaken  designation — effect  of 251 

opinions  of  the  court  annexed  to  record 251 

opinion  of  State  courts  form  part  of  record — when 251 

opinions  of  Supreme  Court  of  New  York  form  part  of  record 251 

opinions  of  State  courts — rule  generally 251 

printing  record — who  must  print 252 

translations 252 

models,  diagrams,  and  exhibits  of  material 252 

original  papers  may  be  ordered  sent  up  to  Supreme  Court 252 

Rule  8  of  U.  S.  Supreme  Court 253 

Rule  14  of  U.  S.  Circuit  Court  of  Appeals 253 

transcript  of  record — The  Statute 252 

no  new  evidence  received  in  Supreme  Court 253 

exceptions — admiralty  and  prize  causes 253 

practice  in  Second  Circuit — 

Equity  Rule  75 — waiver  of  requirements 253 

forms.     See  Forms. 

REFEREE, 

findings  of  referee  in  a  common  law  action  reviewable 55 

distinction  between  reference  at  common  law  or  under  local  practice  of  state  56 
bankruptcy — 

adverse  claims — referee  without  jurisdiction — when 93 

findings  of  referee  not  conclusive 94 

REFERENCE  TO  MASTER, 

by  consent  of  parties — by  court — distinction  between 27 

(453) 


INDEX 

[references  are  to  pages] 

REHEARING, 

proceedings  in  lower  court 228 

procedure 228 

time  for  petition 228 

criminal  cases — rehearing  by  Government 228 

REINSTATING  CAUSE, 

after  same  has  been  passed 276 

REMAND, 

with  directions — reviewable  when 139  (b) 

reversal  for  further  proceedings 139  (c) 

REMARKS, 

improper  remarks  of  District  Attorney — objections  thereto 53 

REMITTITUR 131 

REMOVAL  PROCEEDINGS, 

habeas  corpus 191 

RES  ADJUDICATA, 

questions  of  res  adjudicata  not  Federal 165 

RESTRAINING  ORDER, 

appeal  from 101 

REVENUE  CASES, 

decisions — how  reviewable 22  (h) 

appeal  to  Supreme  Court — no  jurisdictional  amount  required 113 

judgment  against  revenue  officer — no  jurisdictional  amount  required  on 

appeal  to  Supreme  Court 113 

precedence — advancing  causes  on  motion 274 

REVERSAL.     See  Reversible  Error. 

appeal  and  error — prayer  for  reversal 216 

costs  on  reversal 279 

REVERSIBLE  ERROR— WHAT  CONSTITUTES, 

limitations 42 

jury  trial — weight  of  evidence  not  reviewed 42 

remarks  of  Court  reviewable — when 42 

review  confined  to  questions  of  law 42 

scope  of  inquiry  in  trial  before  the  Court 42 

conclusions  of  law — when  not  conclusive 43 

deportation  cases — evidence  reviewable 43 

(454) 


INDEX 

[references  are  to  pages] 

REVERSIBLE  ERROR— WHAT  CONSTITUTES—  Continued 

habeas  corpus  cases — evidence  reviewable 43 

new  trial — granting  or  refusing  same — when  reviewable 43 

new  trial — refusal  to  entertain  motion  for — reviewable 43 

new  trial — excluding  affidavits  on  motion  for — may  be  assigned — when..  .  .  44 

court's  refusal  to  exercise  discretion 44 

injury  to  appellant  as  result  of  error  in  record  presumed 44 

decree  in  equity — reversal  on  court's  own  motion 44 

criminal  cases — reviewing  court  may  notice  plain  error  in  charge  without 

objection 44 

errors  not  jurisdictional  not  considered  unless  raised  below 45 

legal  issues  considered — when 45 

misjoinder  must  be  raised  below 45 

rulings  on  amendments  of  pleadings — when  reviewable 45 

pleading — defect  in  must  be  raised  below 46 

practice  on  demurrer  or  motion  to  dismiss 46 

evidence — insufficiency  of — when  and  when  not  waived 46 

evidence — objections  to — how  made 47 

evidence — objections  to — in  equity  and  admiralty  appeals — practice 47 

evidence — error  in  excluding  material  evidence 47 

motion  to  withdraw  case  from  jury — when  to  be  made 47 

directed  verdict — review  of 48 

error  in  instructing  jury — exception  necessary 49 

charge  to  jury — court  need  not  follow  language  of  counsel 49 

charge  to  jury — court   need   not  repeat  instructions  given  in  different 

language 49 

evidence — judge  may  express  an  opinion  on  same 49 

charge  to  jury — singling  out  facts  prohibited 50 

charging  the  jury — function  of  trial  judge 50 

criminal  cases — verdict  of  guilty  cannot  be  directed 51 

every  question  of  fact  must  be  submitted  to  jury 51 

charge  to  jury — reasonable  interpretation 52 

charge  to  jury  must  be  considered  as  a  whole 52 

charge  to  jury  must  be  preserved  in  bill  of  exceptions 52 

improper  comments  of  district  attorney — objections  thereto 53 

excessive  damages  not  reviewable  by  Federal  appellate  courts 53 

criminal  verdicts — any  count  sufficient  to  sustain 53 

trial  before  the  court — limitation  of  review 54 

common  law  trial  without  jury — limitation  of  review 55 

findings  of  referee  in  a  common  law  action  reviewable 55 

misconduct  of  jury  sufficient  to  warrant  review — when 57 

bankruptcy — plea  to  jurisdiction  overruled 93 

interlocutory  injunctions — orders    not    reviewable  by  Circuit    Court    of 
.Appeals— when 99,  101,  102 

(455) 


INDEX 
[references  are  to  pages] 

REVIEW.     See  Appeal  and  Error;  Appellate  Procedure;  Reversible  Error;  Time; 
Writ  of  Error;  Certiorari. 

Federal  decisions — general  rules  governing 16 

Federal  Court  judgment  or  decree 32 

who  may  apply  for  review 32 

of  judgment  after  adjudication  in  bankruptcy 33 

time  for  review.     See  Time. 

reversible  error — limitations 42 

common  law  trial  without  jury — limitation  of  review 55 

findings  of  referee  in  common  law  action  reviewable 55 

misconduct  of  jury  warrants  review 57 

whole  case  reviewed  by  Supreme  Court — when 64 

by  Supreme  Court — limited  to  question  of  jurisdiction — when 64 

prize  causes 66,  67 

Federal  questions  exclusively  by  Supreme  Court — when 67 

case  involving  Federal  question 69 

construction  of  Federal  treaties — issue  must  be  raised  in  court  below 72 

State  Public  Utilities  Commission's  action 77 

Criminal  Appeals  Act — limitation  of  review 77 

decisions  of  U.  S.  District  Courts — review  by  Circuit  Court  of  Appeals — when  80 

question  of  excess  of  authority  of  trial  court 81 

bankruptcy — Circuit  Court  of  Appeals  by  petition  to  revise.     See  Petition 
to  Revise. 

bankruptcy — Circuit  Court  of  Appeals — mode  of  review 85 

bankruptcy — election  of  trustee 88 

bankruptcy — intervention — by  appeal 89,  90 

admiralty.     See  Admiralty. 
Prize  Causes.     See  Prize  Causes. 

Tucker  Act — review  under 99 

appeal  to  Circuit  Court  of  Appeals  from  interlocutory  orders  awarding  in- 
junctions and  receiverships 99 

scope  of  review  limited  to  injunction — when 100 

scope  of  review — when  injunction  dissolved 102 

orders  of  Federal  Trade  Commission  reviewable  by  Circuit  Court  of  Appeals  106 
Circuit  Court  of  Appeals  judgments  and  decrees  by  Supreme  Court — 

when 109,  110 

Circuit  Court  of  Appeals  judgments  must  be  final  for  appeal  and  error  to 

Supreme  Court 109 

Circuit  Court  of  Appeals  decisions  by  Supreme  Court — corporations Ill 

admiralty  judgment  of  Circuit  Court  of  Appeals Ill 

contempt  judgment  of  Circuit  Court  of  Appeals Ill 

criminal  judgment  of  Circuit  Court  of  Appeals Ill 

patent  cases — no  jurisdictional  amount  required — when 113 

copyright  cases — no  jurisdictional  amount  required — when 113 

(45G) 


INDEX 

[references  are  to  pages] 
REVIEW—  Continued 

revenue  law  judgment  by  Supreme  Court — no  jurisdictional  amount  required  1 13 
judgment  against  revenue  officer  by  Supreme  Court — no  jurisdictional 

amount  required 113 

judgments  and  decrees — deprivation  of  rights  of  citizens  under  Federal  Con- 
stitution     113 

judgments  for  inquiries  by  conspirators  against  civil  rights 113 

second  trial  in  District  Court  upon  reversal  in  Circuit  Court  of  Appeals. . .    114 

bankruptcy — review  by  Supreme  Court  limited  to  certiorari 117 

mandamus  judgment.     See  Mandamus. 

certiorari — Supreme  Court — jurisdiction 122 

Circuit  Court  of  Appeals  final  judgments  reviewable  by  certiorari 122 

under  New  Legislation— Act  Sept.  6,  1916 122 

District  Court  judgment  of  conviction 123 

certiorari 125,  126 

certiorari — questions  not  raised  in  trial  court — when 126 

certiorari  in  interlocutory  appeals 127 

administrative  orders 127 

certiorari  will  not  lie  where  an  appeal  may  be  taken 127,  128 

trademark  cases — decrees  of  Circuit  Court  of  Appeals  reviewable  by  cer- 
tiorari  128  (b) 

contempt  judgment  and  sentence  by  certiorari 128  (c) 

admiralty  decree  of  Circuit  Court  of  Appeals  by  certiorari 128  (d) 

habeas  corpus  judgment  of  Circuit  Court  of  Appeals  by  certiorari 128  (e) 

deportation  case  judgment  of  Circuit  Court  of  Appeals  by  certiorari. . . .  128  (e) 

criminal  judgment  of  Circuit  Court  of  Appeals  by  certiorari 128  (f) 

both  certiorari  and  writ  of  error  may  be  resorted  to — when 129 

certiorari — writ  will  lie — when 12S,  130 

not  issued  as  matter  of  right 129  (b) 

patent  cases — certiorari  granted — when 130  (j) 

criminal  cases — certiorari  granted — when 130  (m) 

certiorari — effect  of  allowance  of  writ 130 

certiorari — mandate  on 131 

certiorari — refusal  of  writ — effect  of 131 

Highest  State  Court  decisions — review  by  Supreme  Court.     See  Highest 

State  Court. 
Court  of  Claims — appeal  from  judgments  and  decrees.     See  Court  of  Claims. 
Court  of  Customs  Appeals.     See  Court  of  Customs  Appeals. 
Board  of  General  Appraisers — review  of  decisions.     See  Board  of  General 

Appraisers. 
Court  of  Appeals  of  District  of  Columbia.     See  District  of  Columbia — Court 

of  Appeals. 
District  Court  of  Porto  Rico — final  decisions — 

to  U.  S.  Circuit  Court  of  Appeals,  First  Circuit — when 183 

direct  to  U.  S.  Supreme  Court — when 184 

(457) 


INDEX 
[references  are  to  pages] 

REVIEW—  Continued 

District  Court  of  Hawaii — final  decisions — 

to  U.  S.  Circuit  Court  of  Appeals,  Ninth  Circuit — when 183 

direct  to  U.  S.  Supreme  Court — when 184 

appellate  jurisdiction  U.  S.  Circuit  Court  of  Appeals 184 

final  decisions  of  District  Courts  of  Porto  Rico  and  Hawaii 184 

Supreme  Court  of  Porto  Rico — final  decisions — 

appeal  and  error  to  U.  S.  Supreme  Court — when 186 

time 186 

appeal  and  error  lie  to  Circuit  Court  of  Appeals — when 185 

certiorari  to  U.  S.  Supreme  Court — when 186 

time  to  present  petition 185 

Supreme  Court  of  Hawaii — final  decisions — 

appeal  and  error  to  U.  S.  Supreme  Court — when 185 

time 185 

appeal  and  error  lie  to  Circuit  Court  of  Appeals — when 185 

certiorari  to  U.  S.  Supreme  Court — when 185 

time  to  present  petition 185 

Porto  Rico — time  for  appeal  and  error  to  Circuit  Court  of  Appeals,  First 
Circuit — 

from  District  Court  of  Porto  Rico 185 

from  Supreme  Court  of  Porto  Rico 185 

Supreme  Court  of  Philippine  Islands — review  by  U.  S.  Supreme  Court  by 

certiorari 186 

District  Court  of  Alaska — review  by  Circuit  Court  of  Appeals,  Ninth  Cir- 
cuit.    See  Alaska. 
District    Court    of    Alaska — review    by    U.    S.    Supreme    Court.      See 

Alaska, 
habeas  corpus  cases.     See  Habeas  Corpus  Cases, 
contempt  of  court.     See  Contempt, 
appellate  procedure — preliminary  steps  for  securing  appeal  and  error.     See 

Appellate  Procedure;  Appeal  and  Error, 
assignment  of  errors.     See  Assignment  of  Errors, 
record.     See  Record. 

record  in  equity.     See  Record  in  Equity, 
bill  of  exceptions.     See  Bill  of  Exceptions, 
bond.     See  Bond, 
citation.     See  Citation. 

supersedeas.     See  Supersedeas;  Supersedeas  Bond, 
trial  before  the  court  in  common  law  cases — review  by  Supreme  Court.    See 

Trial  before  the  Court  in  Common   Law  Cases, 
procedure  in  the  appellate  courts.     See  Appellate  Procedure. 
Supreme  Court  of  U.  S.  will  not  review  case  where  no  question  of  law  is 
presented 269 

(458) 


INDEX 

[references  are  to  pages] 
REVISED  STATUTES  OF  UNITED  STATES.     See  Federal  Statutes. 

RIGHTS, 

Federal  right  must  be  positively  asserted 142 

guaranties — Fourteenth  Amendment 155 

impairment  of  prior  contractual  rights 159,  160 

RIVER  AND  HARBOR  ACT  OF  1890, 

Federal  and  State  legislation 164 

RULES, 

Court  of  Claims 168,  169,  170,  171 

Court  of  Customs  Appeals 177,  178,  179,  180,  181 

Circuit  Court  of  Appeals,  First  Circuit— Oct.  19,  1916 185 

habeas  corpus — custody  of  prisoner  pending  appeal 189 

Supreme  Court  of  U.  S. — 

practice 208 

who  may  allow  appeal  or  error  to 211 

petition  and  assignment  of  errors 212 

assignment  of  errors 215  et  seq. 

appeal,  error,  and  citations  returnable — when 222 

supersedeas  bonds 225 

record  on  appeal 232  et  seq. 

record  in  equity 248  et  seq. 

bill  of  exceptions — 

evidence 240 

exceptions  to  charge 241 

procedure  in  the  appellate  courts.     See  Appellate  Procedure. 

printed  record — form  and  size 264 

printed  arguments — form  and  size 264 

printed  briefs — form  and  size 264 

precedence — advancing  causes  on  motion 274 

interest 278,  279 

Circuit  Court  of  Appeals — 

assignment  of  errors 216  et  seq. 

admiralty 230 

record  on  appeal 232  et  seq. 

bill  of  exceptions — 

exceptions  to  charge 241 

printed  record — form  and  size 264  et  seq. 

printed  arguments — form  and  size 264  et  seq. 

printed  briefs — form  and  size 264  et  seq. 

record  in  equity.     See  Record  in  Equity. 

procedure  in  the  appellate  courts.     See  Appellate  Procedure. 

(459) 


INDEX 
[references  are  to  pages] 

s 

SALES, 

orders  on  sales  and  resale  appealable 23 

decree  of  sale  appealable 23 

order  setting  aside  sale — not  final — who  may  appeal 23 

SECURITY.     See  Bond. 

SEIZURES.     On  land  under  common  law 94 

SEPARATE  INTERESTS.     Who  may  sue  out  writ  of  error 141 

SEVENTH  AMENDMENT  TO  U.  S.  CONSTITUTION, 

State  Court  not  bound  by 143 

SEVERANCE 35,  36,  141 

of  record.     See  Record. 
forms.     See  Forms. 

STATE, 

constitution  or  law  contrary  to  U.  S.  Constitution 72,  134  (b) 

Fourteenth  Amendment  embraces  all  agencies  of  state 155 

judiciary  included  in  Fourteenth  Amendment 156 

cannot  prevent  the  object  of  "due  process " 156 

STATE  COURT, 

proceedings  enjoined  by  Federal  Court 103,  104 

bankruptcy — enjoining  proceedings  of 103,  104 

judgment  of  State  Court — Federal  Court  may  enjoin  enforcement — when  104 

judgments  void — when 104 

Highest  State  Court  decisions  reviewable  by  Supreme  Court.     See  Highest 
State  Court. 

Fourteenth  Amendment  controls  action  of 143 

not  bound  by  Fifth  Amendment 143 

not  bound  by  Seventh  Amendment 143 

Federal  claim — issue  of  law  must  be  definite 143 

Federal  claim  cannot  be  spelled  out  by  resort  to  judicial  knowledge 143 

raising  Federal  question — no  special  form  required 144 

Federal  question  must  be  raised  in  State  court 144 

failure  to  raise  Federal  question  in  trial  court — effect  of 144 

what  decision  must  show 147 

Federal  question — statement  in  opinion — when  insufficient 148 

Supreme  Court  not  limited  to  opinion  of  State  court — when 149 

(460) 


INDEX 
[references  are  to  pages] 

STATE  COURT— Continued 

Federal  questions — what  constitutes 153  et  seq. 

Fourteenth  Amendment.     See  Fourteenth  Amendment. 

judgments  of  the  same  jurisdiction 163 

navigable  waters  of  United  States — decisions  reviewable 163 

Federal  and  State  Legislation 164 

River  and  Harbor  Act  of  1890 164 

Federal  Land  Titles — decisions  reviewable 164 

banking  laws  of  United  States — decision  of 164 

patent  laws — decision  of  State  court  not  reviewable — when 165 

mining  laws  as  a  Federal  question 165 

res  adjudicata — question  of,  not  Federal 165 

bankruptcy — State  court  decisions  reviewable — when 166 

forma  pauperis — writ  of  error  not  allowed 166 

habeas  corpus  pending  appeal  to  Federal  Court — 

acts  of  State  court  are  void 190 

innocent  conduct  as  contempt — review 206 

STATEMENT  OF  ERRORS, 

time  for  filing 258 

STATE  PUBLIC  UTILITIES  COMMISSION, 

action  reviewable 77 

STATUTE, 

constitutionality  of — who  may  assail 37 

State  statute — who  may  assail  constitutionality  of 38 

indictment  dismissed — misconstruction  of  statute  reviewable 78 

State  statute — Fourteenth  Amendment  to  the  Constitution 153,  154 

State  Statute— "impairing  obligations  of  a  contract" 159  et  seq. 

creating  Court  of  Customs  Appeals 172 

contempt  of  court — construction  of 1 98 

STAY  OF  EXECUTION, 

Circuit  Court  of  Appeals  has  power  to  grant  same — when 122,  123 

appeal  or  error  to  Supreme  Court  from  District  Court — who  may  grant.  . .  211 
operative  only  as  against  those  who  gave  appeal  bond 220 

STAY  OF  PROCEEDINGS, 

appeal  or  error  to  Supreme  Court  from  District  Court — who  may  grant.  .  .  211 

STIPULATED  JUDGMENTS  AND  DECREES.     Not  appealable 30 

STIPULATION.     As  to  what  record  should  contain 236 

(461) 


INDEX 
[references  are  to  pages] 

SUBJECT-MATTER, 

jurisdiction  over — how  conferred 8 

cannot  be  conferred  by  consent 9 

SUBPCENA  DUCES  TECUM, 
failure  to  produce  papers — 

advice  of  counsel  no  defense 200 

SUMMARY  PROCEEDINGS, 

bankruptcy 90,     91 

jurisdiction  of  Bankruptcy  Court — test  of 91,     92 

SUPERSEDEAS.     See  Appellate  Procedure;  Supersedeas  Bond. 

appeal  or  error  to  Supreme  Court  from  District  Court — who  may  grant. .  .  211 
appeal  or  error  to  Circuit  Court  of  Appeals  from  District  Court — who  may 

grant 21 1 

time  for  application 224 

bond — amount  required 225 

prerequisites 225 

lodgment  of  writ  of  error 225 

matter  of  right — function  of  court 225 

requiring  better  security 226 

criminal  cases  — bail 226 

capital  cases 226 

stay  of  death  penalty — The  Statute 226 

time  for  filing  bond 227 

admiralty 231 

bond 231 

SUPERSEDEAS  BOND, 

not  sufficient  to  suspend  or  continue  injunction  pending  appeal 100 

amount 225 

power  of  court  to  increase  amount 226 

time  for  filing  bond 227 

admiralty 231 

forms.     See  Forms. 

SUPREME  COURT  OF  THE  UNITED  STATES.     See  also  Jurisdiction; 
Jurisdictional  Amount;  Appellate  Procedure;  Certiorari;  Time. 

appeal  and  error  from  U.  S.  District  Courts  direct  to  Supreme  Court — 

statutory  provision:    §  238  Fed.  Jud.  Code 59 

Hawaii 59 

Clause  I.     jurisdiction  of  Court  as  a  Federal  Court  in  issue 59,  60 

jurisdictional  amount  not  required — when 59 

(462) 


INDEX 

[references  are  to  pages] 

SUPREME  COURT  OP  THE  UNITED  STATES—  Continued 
Clause  I. — Continued 

jurisdiction  of  U.  S.  District  Court  as  Federal  Court — 

definition  by  Mr.  Justice  Holmes 61 

jurisdiction — mere  challenge  of — insufficient 62 

jurisdictional  claim  by  reason  of  illegal  service  of  process. . .     62 
affidavits  attached  to  plea  of  jurisdiction  considered  on 

appeal 62 

jurisdiction — challenging    same    as    court    of   equity   in- 
sufficient       62 

venue — questions  of  reviewable 63 

bankruptcy — dismissal  of  proceedings  for  lack  of  jurisdic- 
tion, how  reviewable 63 

jurisdictional  issue  as  understood  by  the  parties 63 

capital  cases — character  of  crime  is  test  of  jurisdiction  of 

Supreme  Court 63 

arrest  cases — orders  not  reviewable — when 63 

Interstate    Commerce    case — dismissal    order — when    re- 
viewable      64 

direct  appeal  does  not  lie  when  no  question  of  jurisdiction 

certified 64 

direct  appeal  does  not  lie  where  jurisdiction  of  court  as 

Federal  Court  not  at  issue 64 

review  of  whole  case  by  Supreme  Court — when 64 

jurisdictional  question — necessity  of  certifying 64 

jurisdictional  question — mode  of  certification 65 

jurisdictional  question — sufficiency  of  certification 65 

jurisdictional  question — when  certificate  not  required 66 

jurisdictional  question — time  to  issue  certificate 66 

Clause  II.     prize  causes — how  reviewable 66 

prize  causes — amendments  permitted  when 67 

prize  causes — judgment  or  decree — how  reviewable 67 

Clause  III.     constitutional  questions  are  reviewed  by  Supreme  Court 

exclusively — when 67 

substantial  constitutional  question  a  jurisdictional  pre- 
requisite      67 

appeal  or  writ  of  error  to  U.  S.  Supreme  Court  or  U.  S. 
Court  of  Appeals,  when  optional 68 

cross-appeals  permissible — when 68 

specific  constitutional  question  must  appear  from  plain- 
tiff's statement  of  claim 69 

facts  and  law  must  be  well  pleaded 69 

(463) 


INDEX 
[references  are  to  pages] 

SUPREME  COURT  OF  THE  UNITED  STATES— Continued 
Clause  III. — Continued 

constitutional  question — defendant  may  raise  same  by 

answer 69 

constitutional  question — review  consists  of 69 

constitutional  question — what  will  be  reviewed 69 

constitutional  question  arising  duriag  trial 70 

constitutional  question  decided  pending  appeal — juris- 
diction retained  on  other  branches  of  case 70 

frivolous  constitutional  questions 71 

Clause  IV.     construction    of    Federal    treaties — appeal    direct    to 

Supreme  Court 71 

issue  must  be  raised  in  court  below 72 

non-resident  alien  may  raise  question 72 

Clause  V.       when  State  constitution  or  law  is  contrary  to  U.   S. 

Constitution,  direct  appeal  lies 72 

interlocutory  injunctions — restricting  issuance — jurisdic- 
tion of  Supreme  Court  on  direct  appeal,  under  Act  of 

Mar.  4,  1913 72 

Interstate  Commerce  cases — appeals  from  interlocutory 

injunctions,  under  Act  of  Oct.  22, 1913 73 

Supreme  Court — jurisdiction 76 

applies  to  orders  of  administrative  board  or  com- 
mission       76 

cannot  restrain  public  officer  where  act  is  constitu- 
tional       76 

Supreme  Court  on  review  may  determine  every  question     77 

State  Public  Utilities  Commission  action  reviewable 77 

injunction  refused — when 77 

Criminal  Appeals  Act.     Jurisdiction  Supreme  Court  on  appeals  by 

Government 77 

Review  by  Supreme  Court — limitation 77 

indictment  bad  in  law  not  reviewable 78 

statute — misconstruction  of — reviewable 78 

indictment — construction  of — by  court  below 78 

Tucker  Act,  now  U  20  of  §  24  Fed.  Jud.  Code 99 

concurrent  jurisdiction  of  District  Court  with  Court  of  Claims — 

when 99 

judgments  of  District  Court  reviewable  only  by  Supreme  Court  of 
U.  S 99 

(464) 


INDEX 
[references  are  to  pages] 

SUPREME  COURT  OF  THE  UNITED  STATES— Continued 

appeal  and  error  from  U.  S.  Circuit  Court  of  Appeals  to  Supreme  Court- 
statutory  provisions,  §  241  Fed.  Jud.  Code 109 

when  appeal  lies 109,  110 

jurisdictional  amount 109 

practice — rules  for 109 

judgment  of  U.  S.  Circuit  Court  of  Appeals  must  be  final 109 

jurisdiction  of  Supreme  Court — how  extended Ill 

corporations  organized   under  Act  of  Congress — decisions  of  Circuit 

Court  of  Appeals  reviewable HI 

admiralty  causes  not  reviewable HI 

contempt — certiorari  only  method  of  review HI 

criminal  causes — certiorari  only  method  of  review HI 

two  appeals  not  permissible — when H2 

appellate  jurisdiction — scheme  of H2 

two  appeals  to  save  remedy — how  disposed  of 112 

bankruptcy — jurisdictional  amount 112,  113 

jurisdictional  amount  not  required — when 113 

jurisdictional  amount — how  shown 114 

mandate  of  Circuit  Court  of  Appeals,  interpretation  of 114 

reversal  in  Circuit  Court  of  Appeals — appeal  from  second  trial  in  Dis- 
trict Court 114 

certified  questions  §§  239,  251  Fed.  Jud.  Code 114 

rule  of  Supreme  Court — requisites 115 

specific  questions  only  to  be  certified 115 

specific  propositions  of  law  only  will  be  considered  and  answered ...   116 

categorical  answers  made  by  Supreme  Court 116 

bankruptcy — questions  of  law  may  be  certified 116 

no  certification  after  decision  in  Circuit  Court  of  Appeals 117 

clerk's  fee  must  be  paid  before  record  is  furnished 117 

record  must  be  furnished  on  application 117 

certificate — form  of 117 

bankruptcy — jurisdiction  of  U.  S.  Supreme  Court 117 

bankruptcy — no  appeal  lies  to  Supreme  Court  under  new  law 117 

prohibition — writ  of,  power  of  Supreme  Court  to  issue  same 118 

prohibition — writ  of,  limited  to  admiralty 118 

mandamus.     (See  also  Mandamus.) 

power  of  Supreme  Court  to  issue  writ 118 

issued  in  aid  of  appellate  jurisdiction 118 

allowed  in  absence  of  appellate  remedy 118 

general  use  of H8 

when  inferior  court  acts  without  authority 119 

lies  to  enforce  ministerial  duty  exclusively 119 

to  compel  reversal  will  not  lie 120 

(465) 


INDEX 
[references  are  to  pages] 

SUPREME  COURT  OF  THE  UNITED  STATES—  Continued 

judgment  reviewable  by  writ  of  error 120 

jurisdiction  of  U.  S.  District  Court 120 

to  Circuit  Court  of  Appeals  to  entertain  jurisdiction  in  contempt    206 
Highest  State  Court  decisions  reviewable  by  Supreme  Court.     See  Highest 

State  Court, 
appeals  from  Court  of  Claims  to  Supreme  Court.     See  Court  of  Claims, 
appeal  and  error  direct  to  U.  S.  Supreme  Court  from  territorial  District 

Courts 184 

appeal  and  error  from  Court  of  Appeals  of  District  of  Columbia.     See  Dis- 
trict of  Columbia  (Court  of  Appeals.) 
appeal  and  error  from  courts  of  Alaska  to  Supreme  Court.     See  Alaska. 

certified  questions — Alaska 186 

appeal  and  error  from  courts  of  Hawaii  to  Supreme  Court.     See  Hawaii, 
appeal  and  error  from  courts  of  Porto  Rico  to  Supreme  Court.    See  Porto 

Rico, 
appeals  from  courts  of  Philippine  Islands  to  Supreme  Court.     See  Philippine 
Islands. 

certiorari  to  Circuit  Court  of  Appeals — jurisdiction 123 

(See  also  Certiorari  from  Supreme  Court.) 
certiorari.     See  Certiorari, 
habeas  corpus.     (See  also  Habeas  Corpus.) 

appeal  and  error  from  District  Court  lies — when 188 

custody  of  prisoner  pending  appeal — Rule  34 189 

acts  of  State  courts  pending  appeal  to  Federal  Court  void 190 

appeal  to — certificate  from  Federal  judge  prerequisite — when 190 

writ  issued — when 191 

bankruptcy.     See  Bankruptcy. 

admiralty.     See  Admiralty. 

prize  causes.     See  Prize  Causes. 

civil  anti-trust  causes.     See  Anti-Trust  Causes. 

Criminal  Appeals  Act.     See  Criminal  Appeals  Act. 

State  Public  Utilities  Commission — action  reviewable  by 77 

interlocutory  injunctions — 

direct  appeal  to  Supreme  Court — restricting  issuance 72 

jurisdiction — Interstate  Commerce  Cases 73 

orders  by  Administrative  Board  or  Commission   -how  reviewable 77 

Acts  of  Congress.     See  Acts  of  Congress. 

only  court  created  by  U.  S.  Constitution 4 

not  limited  to  opinion  of  State  court — when 148 

will  decide  whether  due  process  denied 157 

"impairing  obligations  of  contracts" — Supreme  Court  not  bound  by  State 

court  finding 159 

time  for  appeal,  error,  or  certiorari.     See  Time. 

(466) 


INDEX 

[references  are  to  pages] 

SUPREME  COURT  OF  THE  UNITED  STATES—  Continued 
Appellate  Procedure.     See  Appellate  Procedure, 
procedure  in  Supreme  Court.     See  Appellate  Procedure, 
trial  before  the  court  in  common  law  cases — review  by  Supreme  Court.     See 
Trial  before  the  Court  in  Common  Law  Cases. 

appearance  of  counsel 257 

counsel  must  be  member  of  the  Bar  of  Supreme  Court  of  U.  S 257 

counsel  must  sign  individual  name 257 

assignment  of  errors.     See  Assignment  of  Errors. 

citation.     See  Citation. 

record.     See  Record. 

record  on  appeal.     See  Record. 

record  in  equity.     See  Record  in  Equity, 

bond.     See  Bond. 

bill  of  exceptions.     See  Bill  of  Exceptions. 

supersedeas.     See  Supersedeas. 

briefs.     See  Briefs. 

arguments.     See  Arguments. 

motions.     See  Motions. 

forms.     See  Forms. 

where  no  question  of  law  is  presented  Supreme  Court  will  not  review  case .  269 

rule  for  precedence — advancing  causes  on  motion 273,  274,  275 

law  library — use  of 275 

interest— Rule  23 278,  279 

attorneys  and  counsellors — general  provisions 283 


TAXES, 

Federal  Court  enjoining  proceedings  in  State  court. 103 

TERRITORIAL  COURTS, 

appeal  and  error  from.     See  Appeal  and  Error;  District  of  Columbia;  Porto 
Rico;  Hawaii;  Philippine  Islands;  Alaska. 

TESTIMONY, 

abstracting  testimony  for  record  on  appeal  in  equity 249 

TIME, 

Supreme  Court  of  U.  S.     (See  also  Time  in  general.) 

appeal,  error  or  certiorari  in  any  cause 208 

certiorari 124,  208 

certiorari  in  vacation 125 

(467) 


INDEX 
[referenxes  are  to  pages] 

TIME— Continued 

Supreme  Court  of  U.  S. — Continued 

civil  anti-trust  causes 209 

capital  cases 209 

to  certify  jurisdictional  question 66 

to  appeal  from  Court  of  Appeals  of  District  of  Columbia 182 

appeal  and  error  from  District  Court  of  Porto  Rico 185 

appeal  and  error  from  Supreme  Court  of  Porto  Rico 185 

appeal  and  error  from  Supreme  Court  of  Hawaii 185 

review  of  decisions  of  Supreme  Court  of  Porto  Rico 185 

review  of  decisions  of  Supreme  Court  of  Hawaii 185 

review  of  decisions  of  courts  of  Alaska 186,  208,  256 

Highest  State  Court — error  or  certiorari 135  et  seg. 

appeals  from  Court  of  Claims 168 

to  file  record  on  appeal 170,  179 

to  docket  case  on  appeal 170 

to  submit  appeal  on  printed  briefs 170 

to  allow  appeal  ends  at  application  for  same 170 

to  file  findings  of  fact  and  conclusions  of  law 170 

for  parties  to  submit  findings  of  fact 171 

U.  S.  Circuit  Court  of  Appeals.     (See  also  Time  in  general.) 

appeal  or  error  generally 208 

bankruptcy — 

to  appeal 83 

to  file  petition  to  revise 86 

admiralty — 

to  appeal 94 

to  file  record 97 

to  file  apostles 97 

new  proof  and  pleadings 98 

to  appeal  from  interlocutory  orders  awarding  injunctions  and  receiver- 
ships  99,  100,  209 

appeal  and  error — Porto  Rico — 

from  District  Court  to  Circuit  Court  of  Appeals,  First  Circuit. .  183,  184 
from  Supreme  Court  to  Circuit  Court  of  Appeals,  First  Circuit.  183,  184 

time — generally 208 

how  calculated 210 

may  be  extended — when 210 

commences  to  run — when 210 

time  cannot  be  extended  by  stipulation 210 

bankruptcy  appeals 83,  86,  211,  212 

bond — appeal  or  error 221 

appeals,  writs  of  error,  and  citations  returnable — when 222 

time  extended — when 222 

(4G8) 


INDEX 

[references  are  to  pages] 

TIME— Continued 

supersedeas  must  be  applied  for — when 224 

supersedeas  bond 226,  227 

setting  aside  appeal 228 

setting  aside  interlocutory  order 229 

second  appeal  or  error — time  for  taking 229 

notice — designating  portions  of  record  on  appeal 235 

record — time  for  return 236 

bill  of  exceptions — 

time  for  signing  and  settling 243 

New  York,  Southern  District 244 

extension  of  time  by  consent 245 

record  on  appeal  in  equity — • 

procedure  in  the  appellate  courts.     See  Appellate  Procedure. 

time  to  file  prascipe 249 

docketing  cause  in  appellate  courts 255 

time  enlarged — how 255 

filing  record  in  appellate  courts 255 

time  extended — how 255 

failure  to  comply  with  rule — effect 255 

failure  to  file  record  in  time  deprives  appellate  court  of  jurisdiction. .  .  255 

rules  are  directory  only 258 

motion  to  dismiss  for  failure  to  file  in  time 273 

settling  the  record — 

time  for  filing  statement  of  errors 258 

printing  the  record 258 

time  for  paying  estimated  cost  of  printing  record 258 

time  for  designating  parts  to  be  printed 258,  259 

time  for  designating  additional  parts  to  be  printed 259 

appeal  or  error  from  final  judgment  or  decree — Second  Circuit — 

time  for  serving  and  filing  copies  of  transcript 259 

filing  and  serving  printed  records  used  in  court  below 260,  261 

appeal,  error,  and  citations — 

time  for  return 256 

time  for  serving 256 

admiralty — 

appearance  by  appellee — time  for  entering 257 

writ  of  error — time  for  return 257 

death  of  a  party  pending  appeal  or  error — 

time  for  representatives  to  become  parties 262 

death  of  a  party  before  appeal  or  error  sued  out — 

time  for  representative  to  become  party  when  without  the  jurisdiction 
of  the  court 263 

(469) 


INDEX 

[references  are  to  pages] 

TIME— Continued 

certiorari  for  diminution  of  record — 

time  for  making  motion  for 263 

briefs  in  U.  S.  Supreme  Court — 

time  for  filing  same 267 

printed  arguments  and  briefs — 

time  for  submitting  same 270 

motions  in  Supreme  Court — time  for  argument 270,  271 

motions  in  Circuit  Court  of  Appeals — time  for  argument 271 

motion  to  dismiss  or  affirm — 

time  for  serving  notice,  etc 272 

motion  to  dismiss — 

time  for  filing  record 273 

oral  argument  of  cause  on  summary  docket 273 

oral  argument — time  for 277 

rehearing — time  for  petition 278 

mandates  issue — when 280 

process — time  for  service 284 

Court  of  Customs  Appeals — 

to  appeal  on  transfer  of  review  to 175 

to  appeal  to 176 

process  issued  by  Court  of  Customs  Appeals — returnable 177 

to  print,  file,  and  serve  records  and  briefs 179 

to  present  motions 179 

arguments 180 

applications  for  rehearing 181 

TITLES.     Federal  land 164 

TRADEMARK  CASES, 

decrees  of  Circuit  Court  of  Appeals  reviewable  by  certiorari 128  (b) 

TRANSCRIPT  OF  RECORD.     See  Record. 

TRANSFER  OF  CAUSES, 

equity  courts  to  law  courts 15 

TRANSLATIONS, 

record  on  appeal  in  equity 248  et  seq. 

TREATIES.     See  Federal  Constitution,  Laws  and  Treaties. 

TRIAL.     See  Appellate  Procedure;  Reversible  Error — What  Constitutes;  Trial 
before  the  Court  in  Common  Law  Cases. 

(470) 


INDEX 
[references  are  to  pages] 

TRIAL  BEFORE  THE  COURT  IN  COMMON  LAW  CASES— REVIEW 
BY  SUPREME    COURT— 

limitation  of  review 54,  55 

special  findings — The  Statute 245 

request  for  findings  necessary 246 

mere  general  finding  not  reviewable 246 

effect  of  findings  of  fact 246 

findings  of  fact  not  reviewable  by  writ  of  error 246 

rulings  and  proceedings  must  be  preserved  by  bill  of  exceptions 246 

exception  to  finding  unnecessary — when 246 

exception  to  riding  unnecessary — when 246 

inferences  in  absence  of  findings  cannot  be  drawn  by  appellate  court 246 

agreed  statement  of  facts  considered  as  special  findings — when 247 

TRIAL  COURT.     See  Various  Courts. 

errors  committed  before  trial  court — limitation  of  review 54,  55 

objections  and  exceptions  before 242 

TRUSTEE, 

bankruptcy — election  of — how  reviewable 88 

TUCKER  ACT, 

concurrent  jurisdiction  of  District  Court  with  Court  of  Claims — when 99 

judgments  of  U.  S.  District  Court — reviewable  in  Supreme  Court  only ....  99 

U 

UNITED  STATES, 
criminal  cases — ■ 

United  States  can  appeal  or  bring  certiorari — when 38 

rehearing  by  United  States 278 

Criminal  Appeals  Act — appeal  by  United  States 77 

limitation  of  review  by  Supreme  Court 77 

indictment  not  reviewable — when 78 

indictment  dismissed — misconstruction  of  statute — reviewable 78 

Federal  land  titles 164 

banking  laws  of  U.  S. — questions  under 164 

patent  laws  of  U.  S. — questions  under 165 

mining  laws  of  U.  S. — claims  under 165 

appeal  from  Court  of  Claims 167 

no  jurisdictional  amount  required 168 

time  to  appeal ; 168 

right  to  appeal 168 

no  costs  on  dismissal,  affirmance  or  reversal  when  United  States  a  party. .  279 

(471) 


INDEX 
[references  are  to  pages] 

UNITED  STATES  CIRCUIT  COURTS, 

abolished 5 

UNITED  STATES  CIRCUIT  COURT  OF  APPEALS— JURISDICTION, 

statutory  provision :  §  128  Federal  Judicial  Code — powers  and  jurisdiction  80 

time  for  appeal  and  error  to 208 

(See  also  Time) 

appellate  jurisdiction — when 80 

concurrent  jurisdiction  with  U.  S.  Supreme  Court — when 80 

no  jurisdiction — when  jurisdiction  of  court  below  only  question  in  issue.. .  .  81 

jurisdiction  when  other  questions  are  involved 81 

question  of  excess  of  authority  of  trial  court — when  reviewable 81 

error  of  District  Court  reviewable — when 81,  82 

jurisdiction  of  court  as  a  Federal  Court  reviewable — when 82 

power  to  issue  writs  of  prohibition  and  mandamus — when 82 

appellate  jurisdiction  attaches — when 82 

bankruptcy — 

statutory  provisions 82 

review  and  revise — by  petition  to  revise 83 

time  to  appeal  from  courts  of  bankruptcy — ten  days 83 

decisions  final — reviewable  only  by  certiorari 83 

construction  of  Sections  23,  24,  and  25  of  Bankruptcy  Act 83 

"proceedings  in  bankruptcy" — definition 84 

"controversies  at  law  and  in  equity  arising  in  bankruptcy  proceedings" 

— definition 84 

mode  of  review — care  should  be  taken  in  selecting  same 85,  86 

Section  24  b  of  Bankruptcy  Act — construction  of 86 

distinction  between  proceedings  in  bankruptcy  and  controversies  arising 

in  bankruptcy,  etc 86 

Second  Circuit — time  to  bring  petition  to  revise 86 

remedies — mode  of  review — independent  and  exclusive 86 

petition  to  revise  must  assign  specific  error  of  law 86 

petition  to  revise  used — when 87 

decisions  and  orders  of  District  Court  reviewable  by  petition  to  revise 

87,  88 

only  final  and  definite  decrees  reviewable  on  petition  to  revise 88 

evidence  reviewable  on  petition  to  revise 88 

only  questions  of  law  reviewable  by  petition  to  revise 88 

election  of  trustee — how  reviewable 88 

appeals  under  §  25  Clause  3  of  Bankruptcy  Act 89 

review  by  appeal — when 89 

intervention — how  reviewable 89,  90 

plenary  suits  and  summary  proceedings 90 

test  of  summary  jurisdiction  of  bankruptcy  court 91 

(472) 


INDEX 
[references  are  to  pages] 

U.  S.  CIRCUIT  COURT  OF  APPEALS— JURISDICTION—  Continued 
bankruptcy —  Continued 

bankruptcy  court  may  take  actual  possession  of  property — when  and  how  91 

substantiality  appears  necessity  for  plenary  suit — when 92 

referee  has  no  jurisdiction  over  questions  of  recovery  of  property — when  93 

plea  to  jurisdiction  must  be  denied  by  reply  or  replication 93 

evidence  on  general  inquiry  competent  only  on  question  of  jurisdiction  93 

findings  of  referee  not  conclusive — when 94 

Second  Circuit — time  to  bring  petition  to  revise 86 

appeal  to  Supreme  Court 109  el  seq. 

jurisdictional  amount 112,  113 

certified  questions  to  Supreme  Court 114,  115,  116 

review  by  Supreme  Court  limited  to  certiorari 117 

Admiralty — 

appeal  to  Circuit  Court  of  Appeals — procedure 94 

decisions  final  and  not  appealable 94 

certiorari  only  mode  of  review 94 

prize  causes 94 

Supreme  Court  has  jurisdiction  in  prize  causes  only 94 

seizures  on  land  under  common  law 94 

time  limit  for  appeal — six  months 94 

appeal  is  a  trial  de  novo 94 

joint  appeals — assignment  of  error 95 

the  statute — record 95 

record — the  apostles 95,  96 

how  made  up 95,  96 

contents 97 

one  record  when  both  sides  appeal 97 

objections  to  evidence  contained  in  record — how  availed  of 97 

stipulating  the  record 97 

filing  record — time  limit 97 

mandamus  to  compel  return  of  apostles  may  be  awarded — when 98 

docketing  cases 98 

new  pleadings 98 

new  proof  on  appeal 98 

hearing  on  appeal — notice  limiting  questions 99 

decree  not  reviewable  in  Supreme  Court Ill 

decree  reviewable  by  certiorari 128  (d) 

interlocutory  orders  awarding  injunctions  and  receiverships — 

appeal  from — procedure  and  time 99  et  seq. 

continuing  injunction  pending  appeal — Equity  Rule  LXXIV 100 

supersedeas  bond  not  sufficient  to  suspend  or  continue  injunction  pend- 
ing appeal 100 

appeal — effect  of,  on  pending  cause 100 

(473) 


INDEX 
[references  are  to  pages] 

U.  S.  CIRCUIT  COURT  OF  APPEALS— JURISDICTION— Continued 
interlocutory  orders  awarding  injunctions  and  receiverships — Continued 

appeal — scope  of,  limited  to  injunction 100 

appeal — scope  of,  broadened  when  injunction  dissolved 102 

enjoining  proceedings  in  State  courts 103,  104 

Federal  Trade  Commission 104 

powers  of 104 

procedure  before  Commission  and  U.  S.  Circuit  Court  of  Appeals. 105,  106 

findings  of  Commission  as  to  facts — when  conclusive 106 

further  proof  permissible — when 106 

jurisdiction  of  Circuit  Court  of  Appeals  conclusive — when 106 

service  of  process 106 

final  judgments— Act  Sept.  6,  1916 122 

certiorari  from  Supreme  Court  lies — when 122 

stay  of  execution  to  apply  for  writ  of  certiorari 122,  123 

certiorari  to  Supreme  Court  cannot  be  allowed  by 123 

certiorari.     See  Certiorari. 

criminal  judgment  reviewable  by  certiorari  only 128  (f) 

both  certiorari  and  writ  of  error  may  be  resorted  to — when 129 

mandate — effect  of  certiorari  on  same 130 

trademark  cases — decrees  reviewable  by  certiorari 128  (b) 

failure  of  Highest  State  Court  to  give  effect  to  Federal  judgment 161,  162 

question  of  res  adjudicata — when 163 

revenue  cases — decisions  how  reviewable 22  (h) 

habeas  corpus — 

judgment  reviewable  by  certiorari 128  (e) 

deportation  cases 128  (e) 

appeal  from  District  Court 188 

custody  of  prisoner  pending  appeal — Supreme  Court  rule 189 

acts  of  State  courts  pending  appeal  to  Federal  Court  void 190 

certificate  from  Federal  judge  prerequisite  to  appeal  to  Supreme  Court 

— when 190 

contempt  of  Court.     See  Contempt. 

Mandamus  from  Supreme  Court  to  compel  Circuit  Court  of  Appeals  to  en- 
tertain jurisdiction  in  contempt 206 

appeal  or  error — power  of  judge 211 

judgment  not  final — when 24  (c) 

optional  to  appeal  to  U.  S.  Circuit  Court  of  Appeals  or  Supreme  Court — when    68 

constitutional  questions  reviewable — when 68 

appeal  from  erroneous  interpretation  of  mandate  of  Circuit  Court  of  Appeals  114 
appeal  from  second  trial  in  District  Court  upon  reversal  in  Circuit  Court  of 

Appeals 114 

reversal  in  Circuit  Court  of  Appeals — appeal  from  second  trial  in  District 
Court 114 

(474) 


INDEX 

[references  are  to  pages] 

U.  S.  CIRCUIT  COURT  OP  APPEALS— JURISDICTION—  Continued 

certified  questions  to  Supreme  Court 114,  115 

bankruptcy — questions  of  law  may  be  certified 116 

no  certification  to  Supreme  Court— when 117 

record  must  be  furnished  to  Supreme  Court 117 

form  of  certificate  to  Supreme  Court 117 

assignment  of  errors 216 

bill  of  exceptions.     See  Bill  of  Exceptions. 

citation.     See  Citation. 

bond.     See  Bond. 

supersedeas.     See  Supersedeas;  Supersedeas  Bond. 

record  on  appeal.     See  Record. 

record.     See  Record. 

record  in  equity.     See  Record  in  Equity. 

briefs.     See  Briefs. 

arguments.     See  Arguments. 

motions.     See  Motions. 

return  to  writ  of  certiorari — Eighth  Circuit — form  and  size 265 

trial  before  the  court  in  common  law  cases.     See  Trial  before  the  Court  in 
Common  Law  Cases. 

appeal  and  error  to  Supreme  Court  as  of  right — when 109 

appeal  to  Supreme  Court  lies — when 109,  110,  112 

jurisdictional  amount 110,  112 

no  jurisdictional  amount  required — when 113 

practice — rules  for 109 

judgment  of  Circuit  Court  of  Appeals  must  be  final 109,  110 

jurisdiction  of  Supreme  Court — how  extended Ill 

appeal  or  error  from  District  Court — who  may  allow 211 

(See  also  Appellate  Procedure.) 

appeal  and  error  from  District  Court  of  Porto  Rico — jurisdiction 183 

appeal  and  error  from  District  Court  of  Hawaii — jurisdiction 80,  183 

appellate  jurisdiction — review  of  final  decisions  of  District  Courts  of  Porto 

Rico  and  Hawaii 184 

appeal  and  error  from  Supreme  Court  of  Porto  Rico  lies — when 185 

appeal  and  error  from  Supreme  Court  of  Hawaii  lies — when 185 

appeal  and  error  to  First  Circuit — time — 

from  District  Court  of  Porto  Rico 185 

from  Supreme  Court  of  Porto  Rico 185 

rule  of  Oct.  19,  1916 185 

appeal  and  error  to  Ninth  Circuit — 

from  District  Court  of  Alaska.     See  Alaska. 

First  Circuit — 

appeal  and  error  from  courts  of  Porto  Rico 183,  184,  185 

rule  of  Oct.  19,  1916 185 

(475) 


INDEX 
[references  are  to  pages] 

U.  S.  CIRCUIT  COURT  OF  APPEALS— JURISDICTION—  Continued 
Second  Circuit — (Special  Provisions) 

appeal  or  error  from  District^Court — petition  and  assignment  of  errors,  212 

bankruptcy — time  to  bring  petition  to  revise 86 

appeal  or  error  from  final  judgment  or  decree — 

time  for  serving  and  filing  copies  of  transcript 259 

number  of  copies  to  be  printed,  etc 259 

record  in  equity — practice 252 

docketing  cause  on  appeal  to — fees  and  deposits 255 

Ninth  Circuit — 

appeal  and  error  from  courts  of  Hawaii 80,  183,  184 

appeal  and  error  from  courts  of  Alaska 186,  187 

forms.     See  Forms. 

UNITED  STATES  COMMISSIONER, 

proceeding  before  him — contempt 198 

UNITED  STATES  DISTRICT  COURT, 

revenue  cases — decisions  how  reviewable 22  (h) 

order  in  chambers — habeas  corpus — not  final 24  (d) 

direct  appeal  to  U.  S.  Supreme  Court.     See  Supreme  Court  of  U.  S. 

jurisdiction  of  District  Court  as  Federal  Court — definition 61 

challenging  jurisdiction  as  court  of  equity  insufficient  for  direct  appeal  to 

Supreme  Court 62 

appeal  and  error  to  Circuit  Court  of  Appeals — decisions  reviewable 80 

question  of  excess  of  authority — when  reviewable  in  Circuit  Court  of 

Appeals 81,     82 

error  reviewable  in  Circuit  Court  of  Appeals — when 81,     82 

bankruptcy.     See  Bankruptcy. 

admiralty — seizures  on  land — jurisdiction 94 

concurrent  jurisdiction  with  Court  of  Claims  under  Tucker  Act 99 

judgments  under  Tucker  Act  reviewable  in  Supreme  Court  only 99 

appeal  to  Supreme  Court  not  permissible — when 112 

no  jurisdictional  amount  required  on  appeal  to  Supreme  Court — when 113 

reversal  in  Circuit  Court  of  Appeals — appeal  from  second  trial  in 114 

mandamus  judgment — how  reviewable 120 

mandamus — jurisdiction 120 

failure  of  Highest  State  Court  to  give  effect  to  Federal  judgment 162,  163 

question  of  res  adjudicate, — when 163 

for  District  of  Porto  Rico — 

time  for  appeal  and  error 184 

appeal  and  error  to  U.  S.  Circuit  Court  of  Appeals 183 

appeal  and  error  direct  to  Supreme  Court 183 

(476) 


INDEX 
[references  are  to  pages] 

UNITED  STATES  DISTRICT  COURT—  Continued 
for  District  of  Alaska — 

appeal  and  error  to  U.  S.  Circuit  Court  of  Appeals 186 

appeal  and  error  lie  direct  to  Supreme  Court 187 

nabeas  Corpus.     See  Habeas  Corpus. 

appeal  lies  to  Circuit  Court  of  Appeals — when 188 

appeal  lies  direct  to  Supreme  Court — when 188 

mode  of  appeal — The  Statute 189 

custody  of  prisoner  pending  appeal — Supreme  Court  rules 189 

acts  of  State  courts  pending  appeal  to  Federal  Court  void 190 

certificate  from  Federal  judge  prerequisite  to  appeal  to  Supreme  Court 

—when 190 

contempt  of  Court — review  by  writ  of  error  to  Circuit  Court  of  Appeals 201 

appeal  or  error  to  Supreme  Court — who  may  allow 211 

appeal  or  error  to  Circuit  Court  of  Appeals — who  may  allow 211 

appeal  or  error  to  Circuit  Court  of  Appeals,  Second  Circuit — petition  and 

assignment  of  errors 212 

appeal  or  error  direct  to  Supreme  Court — petition  and  assignment  of  errors,     212 

mandate  from  Circuit  Court  of  Appeals — duty  of  District  Court 229,  230 

admiralty — appeal  to  Circuit  Court  of  Appeals.     See  Admiralty. 

bill  of  exceptions.     See  Bill  of  Exceptions. 

trial  before  the  Court  in  common  law  cases — review  by  Supreme  Court. 

See  Trial  before  the  Court  in  Common  Law  Cases, 
forms.     See  Forms. 


VENUE, 

question  of  venue  reviewable — when 63 

contempt  of  Court — no  change  of  venue 198 

VERDICT, 

direct  verdict — review  of 48 

of  guilty  cannot  be  directed  in  criminal  cases 51 

excessive  verdict 53 

criminal — any  count  sufficient  to  sustain 53 

VOID.    Judgment  without  notice  absolutely  void 8 

W 

WHO  MAY  APPLY  FOR  REVIEW  OF  JUDGMENT  OR  DECREE 
ENTERED  IN  A  FEDERAL  COURT, 

who  may  apply  for  review 32 

bankrupt  may  appeal  in  his  own  name 33 

(477) 


INDEX 

[references  are  to  pages] 

WHO   MAY  APPLY    FOR    REVIEW    OF   JUDGMENT    OR    DECREE 
ENTERED  IN  A  FEDERAL  COURT—  Continued 

party  in  contempt  not  deprived  of  right  of  appeal 33 

insane  person,  next  friend  of — may  appeal 33 

who  must  join  in  appeal  or  error 33 

separate  appeal  permitted — when 34 

party  added  by  order  of  court  may  ask  review 34 

statutory  receiver  of  corporation  may  appeal 34 

common  law  receiver  cannot  appeal 35 

purchaser  at  judicial  sale  may  appeal — when 35 

severance  of  record — procedure  for 35 

special  notice  unnecessary — when 35 

severance  of  record  by  amendment  to  bring  in  omitted  parties 36 

severance  of  record — waiver  of 36 

severance  of  record — when  appeal  or  error  will  be  dismissed 36 

interveners  may  appeal — when 36 

intervention  refused 36 

appeal — leave  to,  compelled  by  mandamus 36 

intervention — appeal  the  method  of  review 37 

intervenor  may  also  appeal — when 37 

persons  not  parties  to  record — when  heard 37 

statute — constitutionality  of,  who  may  assail 37 

statute — state,  who  may  assail 38 

government  cannot  appeal  or  bring  certiorari  in  criminal  cases 38 

exceptions — under  Criminal  Appeals  Act 38 

forma  pauperis  suits 38 

WRIT  OF  ERROR.  See  Appeal  and  Error;  Jurisdiction ;  Jurisdictional  Amount; 
Appellate  Procedure;  Certiorari;  Review;  Time. 

general  definition 3 

distinction  between  appeal  and  error 4 

appellate  jurisdiction — when  retained 5,  6,  70 

who  must  join  in  suing  out  writ  of  error 33 

separate  suing  out  of  writ  permitted — when 34 

time  for.     See  Time. 

direct  to  U.  S.  Supreme  Court  from  District  Court 59 

direct  to  U.  S.  Supreme  Court  to  review  dismissal  of  bankruptcy  proceedings 

for  lack  of  jurisdiction 63 

optional  to  appeal  to  Supreme  Court  or  U.  S.  Circuit  Court  of  Appeals — 

when 68 

decrees  appealable.     See  Chapter  II;  Federal  Decisions — How  and  When 

Reviewable. 

who  may  seek  review 32  to  37  inc. 

frivolous  Federal  questions — cause  for  dismissal 71,  149 

(478) 


INDEX 
[references  are  to  pages] 

WRIT  OF  ERROR—  Continued 

certiorari  and  writ  of  error  may  be  resorted  to — when 127  et  seq. 

severance 35,  36,  141 

severance  of  record 35,     36 

Highest    State    Court — decisions    reviewable    by    Supreme    Court.     See 

Highest    State   Court, 
from  various  territorial  courts.    See  Appeal  and  Error;  District  of  Columbia; 

Porto  Rico;  Hawaii;  Philippine  Islands;  Alaska, 
common  law  actions.     See  Judgment, 
criminal  cases.     See  Criminal  Cases, 
injunctions.     See  Injunctions. 

habeas  corpus  writ  cannot  replace  writ  of  error 191 

contempt  of  Court — when  reviewable  by 201 

criminal  contempt — reviewable  only  by 206 

criminal  contempt  by  a  stranger  to  record — reviewable  only  by 206 

contempt — mandamus  to  compel  Circuit  Court  of  Appeals  to  take  jurisdic- 
tion of  writ 206 

capital  cases — time  to  sue  out  writ 209 

how  issued  and  served 213 

absence  of  seal  does  not  invalidate  it 213 

filing 213,  214 

form 214 

amendment  of  writ 214,  215 

inserting  name  of  party  omitted  by  mistake 214,  215 

assignment  of  errors — necessity  for 215 

transcript  of  record 215 

prayer  for  reversal 216 

citation 221 

assignment  of  errors  cannot  enlarge  Federal  question  as  made  by  record 215 

no  assignment  of  errors — writ  dismissed 215 

review  limited  to  errors  assigned 215 

assignment  of  errors—  form 216 

(See  also  Forms.) 

assignment  of  errors  held  bad — when 216,  217,  218 

assignment  of  errors  held  good — when 218 

by  both  parties — one  record  sufficient 219 

bond — The  Statute.     See  Bond;  Forms. 

from  part  of  judgment  permissible — when 220 

citation.     See  Citation, 
supersedeas.     See  Supersedeas, 
effect  of  perfecting  writ — 

jurisdiction  transferred — when 227 

application  for  rehearing  in  lower  court  after  writ  is  perfected 228 

matter  of  right 228 

(479) 


INDEX 
[references  are  to  pages] 

WRIT  OF  ERROR—  Continued 

second  writ  of  error — 

when  allowed 229 

time 229 

mistake  as  to  proper  remedy 229 

second  writ  of  error  subsequent  to  mandate 229 

review  limited  to  proceedings  subsequent  to  mandate 229 

not  entertained — when 230 

record.     See  Record. 

record  in  equity.     See  Record  in  Equity. 

bill  of  exceptions.     See  Bill  of  Exceptions. 

citation.     See  Citation. 

trial  before  the  Court  in  common  law  cases — review  by  Supreme  Court. 
See  Trial  before  the  Court  in  Common  Law  Cases. 

procedure  in  the  appellate  courts.     See  Appellate  Procedure. 

forms.     See  Forms. 

WRIT  OF  INHIBITION, 

admiralty 231 

WRIT  OF  MANDAMUS.     See  Mandamus;  Mandamus  Proceedings. 

WRIT  OF  PROHIBITION, 

judgment  final 21  (a) 

power  of  Circuit  Court  of  Appeals  to  issue  same  in  aid  of  appellate  jurisdic- 
tion      82 

Supreme  Court  may  issue  same — when 118 

limited  to  Admiralty  and  Maritime  cases 118 


(480) 


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